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Canonical  Procedure 


IN 


DISCIPLINARY    AND    CRIMINAL 
CASES    OF    CLERICS. 


A   Systematic   Commentary  on   the   "Instruetio 
S.  C,  Epp.  et  Reg.,  1880." 


BY  THE 

Rev.    FRANCIS    DROSTE. 

EDITED   BY   THE 

Rev.    SEBASTIAN   G.    MESSMER,  D.D., 

Professor  of  Theology. 


New  York.  Cincinnati,  and  St.  Louts  : 

BKNZIGER     BROTHERS, 

PRINTERS  TO  THE  HOLY  APOSTOLIC  SEE. 

R.  WASH  BOURNE,  M.  H.  GILL  &  SON, 

18  Paternoster  Row.Londos.  50  Upper  O'Connell  Street,  Dubun. 

1887. 


Wfjil  ®6stat, 

H.   GABRIELS,   S.T.D., 

Censor  Deputatus. 

Kmprfmatur, 

*V  M.   A.    CORRIGAN, 

Archiepiscopus  Neo-Eboracensts. 


Datum  Nbo-Eboraci,  Die  34  Maji,  1887. 


Copyright,  1887,  by  Benziubk  Brothers. 


EDITOR'S    PREFACE. 


When  in  the  year  1880  the  S.  Congregation  of  Bishops 
and  Regulars  sent  to  tiie  Bishops  of  Italy  tiie  now  famous 
Instruction  on  the  summary  procedure  in  disciplinary  and 
criminal  causes  of  clerics,  it  soon  became  evident  that  the 
reform  tlius  initiated  would  not  remain  confined  to  Italy, 
but  would  gradually  find  its  way  to  other  countries.  Anti- 
cipating this,  the  Rev,  Francis  Droste,  a  priest  of  the 
diocese  of  Paderborn,  wrote  a  short  and  simple  commen- 
tary on  the  new  procedure,  which  he  designed  more 
for  practical  use  than  legal  speculation.  In  order,  how- 
ever, that  the  laws  themselves  on  which  the  several  articles 
of  the  Instruction  are  based,  may  be  sufficiently  under- 
stood, the  author  gives  in  the  first  part  a  short  exposition 
of  ecclesiastical  jurisdiction  and  its  judicial  organs,  while 
in  the  Introduction  he  determines  the  place  occupied  by  tiie 
Instruction  in  the  public  and  historical  law  of  the  Churcii. 

The  Third  Plenary  Council  of  Baltimore  in  1884,  com- 
plying with  the  request  of  the  S.  C.  de  Prop.  Fide,  adopt- 
ed the  same  Instruction'  with  a  few  slight  modifications 
(which  may  be  seen  at  a  glance  in  the  Appendix).  It 
is  a  mere  question  of  time  when  these  same  provisions 
shall  be  extended  to  all  English-speaking  missionary  coun- 
tries; and  as  an  English  commentary  on  the  Instruction 
was  desired,  a  German  priest  of  the  diocese  of  Covington, 
Ky.,  translated  Father  Droste's  little  book.  To  be  of 
greater  service,  however,  the  work  needed  adaptation  to 
conditions  for  which  it  was  not  originally  intended.  This 
labor  was  intrusted  to  the  present  writer,  who  confesses  to 
having  taken  very  great  liberty  with  the  translation  as  well 
as  with  the  original  work.  Droste  wrote  for  readers  who 
had  gone  through  a  regular  course  of  Canon  law  and  were, 
moreover,  acquainted  with  the  practice  of  canonical  pro- 

'  Where  this  American  Instruction  differs  from  the  Italian,  we  refer 
to  it  by  its  initial  words.  Cum  Magnopere;  to  the  other  by  L'Ordinario; 
and  where  they  agree,  simply  by  Instr.  1880.  To  the  Instr.  S.  C.  de 
Prop.  Fide  on  the  Committee  of  Investigation  (see  Appendix)  we  refer 
by  Instr.  187S,  Finally  to  that  on  the  Tridentine  suspension  (see  Ap- 
pendix) by  Jnstr.  1884, 


8  Editor  s  Preface. 

cedure.  The  editor  hopes  to  reach  a  much  larger  class  of 
readers.  Hence  explanatory  notes  have  been  added  and  a 
number  of  paragraphs  of  new  matter  inserted  in  the  text 
(these  being  indicated  by  an  asterisk,  thus:  97*)  to  supply 
more  of  what  he  considers  useful  or  even  necessary  infor- 
mation; again,  for  sections  dealing  with  matters  of  only 
local  interest,  others  of  a  more  general  bearing  have  been 
substituted  (thus  in  pt.  i.  sec.  3),  and  subjects  too  lightly 
touched  upon  by  the  author  have  been  more  fully  devel- 
oped (as,  e.g.,  that  of  judicial  evidence).  Besides,  more 
system  and  perspicuity  were  to  be  obtained  by  placing 
what  seemed  logically  allied  subjects  under  one  head,  in- 
stead of  leaving  them,  as  originally,  scattered  in  diffeient 
places  (thus  were  formed  chap,  i,  3,  in  pt.  11.  sec.  i).  In  a 
word,  the  original  has  been  so  radically  clianged  that  the 
autlior  will  hardly  recognize  his  German  offspring  in  this 
*'  naturalized  "  American  edition. 

Droste  did  not  consider  it  necessary  to  insert  copies  of 
judicial  formulas  or  documents,  since  they  can  easily  be 
found  in  Bouix  and  Monacelli. 

With  regard  to  legal  phraseology  the  editor  has  tried  to 
use  English  rather  than  Latin,  notwithstanding  his  very 
imperfect  knowledge  of  the  former  language.  Not  being 
a  student  of  Common  law  he  experienced  great  difliculty 
in  finding  the  proper  English  equivalent  for  the  Latin  tech- 
nical terms  and  phrases  of  which  Canon  law  possesses 
such  an  abundance.  Yet  with  an  English  legal  vocabulary 
at  hand  it  did  not  seem  proper  to  retain  the  Latin  termi- 
nology in  a  branch  of  Catholic  science  that  must  become 
ere  long  an  essential  part  of  theological  learning  in  all 
English-speaking  lands.  The  editor  is  fully  sensible  that 
he  has  not  given  a  perfect  rendering;  still  a  beginning  had 
to  be  made.      Vivat  segue ns. 

A  word  as  to  the  references.  The  required  series  of  the 
Anulecta  J.  P.  not  being  at  hand,  it  was  impossible  to 
verify  the  references  thereto  made  by  the  author.  With 
the  exception  of  these,  however,  and  those  to  the  Cor- 
pus J,  Can.  and  the  Acta  S.  S.  (which  were  all  verified), 
the  rest  are  made  by  the  editor  to  suit  those  readers 
who  desire  a  fuller  treatment  of  the  subject  or  some 
authority   for    the    opinion    stated.      Frequent    reference 


Editor  s  Preface.  9 

is  made  to  the  Commentators,  that  is  to  those  canonists 
who  have  written  regular  commentaries  to  the  Decre- 
tals of  Gregory  IX.,  tlie  most  important  part  of  the 
Corpus  J.  C.  and  '"  the  backbone  of  authentic  Church 
legislation." '  These  commentaries  follow  exactly  the 
order  of  the  Decretals  as  to  book,  title,  and  chapter.'  Yet 
other,  especially  Roman,  writers  on  Canon  law  are  not 
neglected.  No  apology  is  deemed  necessary  for  referring 
more  frequently  to  recent  than  to  ancient  canonists.  Law 
and  discipline  must  change  even  in  God's  Church.  Other 
times  demand  other  laws,  and  new  conditions  require  new 
provisions.  From  the  older  commentators  we  may  learn 
the  spirit  of  Canon  law,  the  principles  and  traditional 
norms  to  be  observed  in  its  application  and  execution;  but 
the  laws  of  our  own  time  and  the  actual  practice  must 
be  learned  from  modern  teachers.  In  this  connection  the 
Irish  Ecclesiastical  Record,  1.  c,  very  appropriately  remarks: 
"  We  need  new  books  on  Canon  law  for  two  reasons.  In 
the  first  place  each  fresh  effort  helps  to  push  forward  the 
scientific  treatment  of  ecclesiastical  legislation  beyond  the 
old  lines  in  one  or  more  directions.  Secondly,  the  law  it- 
self, by  reason  of  its  daily  expansions,  requires  further  ex- 
planation where  additions  have  been  made  or  changes 
introduced,  in  order  that  we  may  know  what  it  really  im- 
plies in  our  own  times  and  surroundings." 

This  leads  to  another  observation,  here  offered  with  due 
deference  to  learned  jurisperitis. 

The  Instruction  of  1880  appears  like  a  new  creation.  It 
is  not  a  mere  furbishing  up  of  old  material  or  putting 
together  of  what  had  once  been  parts  of  various  canonical 
processes.  It  is  a  new  legislation  in  spirit,  character,  and 
form.  Although  the  matter  is  gathered  from  older  forms 
of  trials,  yet  there  is  evidently  a  new  substantial  form  to 
unite  them  into  a  new  canonical  procedure  that  has  no  like 
in  all  the  former  laws.  Roman  teachers  have  already  ad- 
mitted that  although  being  called  a  summary  and  econom- 
ical procedure,  yet- the  old  rules  on  summary  trials  cannot 
be  applied  to  the  new  process  without  further  discrimina- 

•  Irish  Eccl.  Record,  i8S6.  vol.  vii.  p   658.    ' 

'  De  Angflis  made  an  exception  by  reserving  book  il.,  on  trials,  for 
the  last  volume  in  connection  with  book  v.,  on  crime  and  punishment. 


lo  Editor  s  Preface. 

tion;  that  although  following  on  tJie  lines  of  the  older  inqui- 
sition, it  is  yet  of  an  altogether  different  nature.  Hence  the 
lengthy,  detailed,  and  subtile  disquisitions  of  older  writers 
on  the  various  forms  of  canonical  procedure  and  the  rules 
which  they  establish  cannot  be  simply  transferred  to  the 
new  form,  although  they  may  throw  great  light  on  the  na- 
ture and  purpose  of  its  several  provisions  and  tell  us  in 
what  spirit  they  must  be  carried  out.  It  is,  therefore,  quite 
probable  that  not  only  will  writers  differ  in  opinion,  but 
also  that  those  whom  it  concerns  will  differ  in  practice. 
Until  Rome,  however,  shall  have  decided  such  doubtful 
points,  as  it  is  anticipated  she  will  {Instr.,  art.  44),  it  may 
be  wise  to  remember  that  errors  in  the  proceeding  will 
not  interfere  with  the  course  of  law  nor  render  a  trial  void 
as  long  as  the  substantial  rules  of  justice  are  observed,  cind 
that  as  to  this  the  law  is  in  favor  of  the  judge,  A  defend- 
ant or  advocate  who  should,  with  Schmalzgruber  on  his 
rigiit  and  Reiffenstuel  on  his  left,  enter  a  plea  of  nullity 
on  the  ground  of  irregular  proceeding  would  probably 
discover  too  late  that  those  learned  counsellors  referred  to 
"  another  case." 

The  present  Instruction  applies  not  to  mere  administra- 
tive measures  or  civil  matters,  but  only  to  criminal  and 
disciplinary  causes.  Discipline*  here  means  correction, 
castigation,  and  even  punishment.  This  is  evident  from 
arts.  I,  2  of  the  Instruction,  as  well  as  from  the  answer  of 
the  S.  C.  de  Prop.  F.,  when  it  says  that  the  Instruction  of 
1878  was  meant  for  such  cases  "in  quibus  ecclesiastica  poena 
seu  censura  sit  infligenda,  aut  gravi  disciplitiari  coercitioni  sit 
locus."  Hence  the  interesting  question  arises  :  How  are 
the  bishops  to  proceed  in  purely  civil  cases,  as  for  instance, 
of  a  congregation  against  the  rector  or  vice  versa,  or  of 
cleric  against  cleric,  when  the  matter  cannot  be  settled 
amicably  between  the  parties  ?  May  they  proceed  on  the 
lines  of  the  present  Instruction  }     If  not,  why  not  ? 

In  conclusion,  mindful  of  the  leading  title  of  this  work, 
the  editor   is   tempted    to   hope    (with    the  permission  of 
the  publishers)  that  the  book  may  never  be  needed,  but 
may  rather  remain  "  on  the  shelf." 
Skton  Uai.l  College, 

South  Orange,  N.  J.,  May  1887. 

'  See  Du  Cantrf,  Glossarium,  s.  v.  Disciplina. 


CONTENTS. 


PACR 

Preface      3 

References 14 


INTRODUCTION. 

Chapter     I.  Object  of  the  Ecclesiastical  Law  of  Disciplinary 

and  Criminal  Procedure  .         .        .        -15 

Cliapter    II.   Relation  between  the  Canon  and  Civil   Law  of 

Criminal  Procedure 17 

Chapter  III.  Sources  of  the  Present  Canonical  Criminal  Pro- 
cedure         20 

Chapter  IV.  Plan  of  this  work 25 


PART  FIRST. 

ECCLESIASTICAL  JUDICA  TURE  FOR  DISCIPLINARY  AND 
CRIMINAL  CASES  OF  CLERICS. 

Section  I. 

ECCLESIASTICAL  DISCIPLINARY  AND  CRIMINAL  JURISDICTION. 

Chapter     I.  Ordinary  and  Quasi-ordinary  Jurisdiction    .         .     28 

Chapter   II.  Delegated  Jurisdiction 30 

Chapter  III.  Jurisdiction  of  Vicars-General      .        .         .        .     34 

Section  II. 

COMPETENCY  OF  THE  ECCLESIASTICAL  JUDICIARY. 

Chapter     I.  Personal  and  Appellate  Competency         .        .     37 
Chapter    II.  Local  Comf>etency 43 


12 


Contents. 


Section  III. 

ORGANIZATION    OF    ECCLESIASTICAL    CRIMINAL    COURTS. 

PAGE 

Chapter     I.  Personnel  of  the  Court 48 

Art.      I.  The  Judge 48 

Art.  II.  The  Auditor  or  Judge  of  Inquiry  .  .  52 
Art.  III.  The  Chancellor,  Secretary  or  Clerk  .  .  57 
Art.  IV.  The  Apparitor 61 

Chapter    II.  The  Parties 62 

Art.      I.  The  Prosecution      .....     62 

1.  The  Fiscal  Procurator      .         .         ,62 

2.  Other  Plaintiffs         .         .         .         .70 
Art.    II.  The  Defence 71 

1.  The  Accused  .....     71 

2.  The  Advocate  or  Counsel        .         .     74 

3.  The  Attorney  or  Proctor  .         .     76 


The  In 


PART  SECOND. 

THE  CANONICAL  PROCEDURE. 
Section  I. 

FORMS    AND    PARTS    OF    CANONICAL    PROCEDURE. 

Chapter     I.  Forms  of  Procedure 

Art.     I.     Judicial  and  Extrajudicial 
Art.     II.  Accusatorial  and  Inquisitorial. 

structio 
Art.  III.  Ordinary  and  Summary  . 
Chapter    II.  Judicial  Evidence     .... 
Art.      I.  General  Remarks     . 
Art.    II.  The  Confession 
Art.  III.  Testimony  of  Witnesses 

I.  Competency  of  Witnesses 
Weight  of  their  Testimony 
Attendance  of  Witnesses 
Examination  of  Witnesses 
Publication  of  Testimony 
Art.  IV.  Miscellaneous  Evidence  . 

1.  Expert  Opinion 

2.  Written  Evidence     . 

3.  Circumstantial  Evidence 


78 

78 

82 

86 

91 

91 

96 

1 01 

102 

105 

no 

116 

119 

121 

121 

122 

i25 


Contents.  1 3 

PAGB 

Chapter  III.  Defensive  Proceedings 127 

Art.      I.  Terms  and  Exceptions     ....  127 

Art.     II.   Recusation 132 

Chapter  IV.  Proceeding  in  Contumacy 136 

Chapter     V.  The  Sentence 138 

Chapter  VI.  Various  Matters 141 

Section  II. 

THE  CANONICAL  PRACTICE. 

Chapter      I.  Extrajudicial  Acts 144 

Art.  I.  Canonical  Admonitions  ....  144 
Art.  II.  Canonical  Injunctions  ....  152 
Art.  III.  The  Trideniine  Suspension      .         .         .   156 

Chapter    II.  The  Judicial  Trial 165 

Art.      I.  The  Auditor's  Inquest  .  .165 

Art.     II.  The  Final  Pleading  and  Sentence  .         .   172 

Chapter  III.  The  Appeal 175 

Chapter  IV.  Extraordinary  Means  of  Redress    .        .        .        .187 
Chapter    V.  Execution  and  Costs 193 


APPENDIX. 

Instructio  S.  C.  Epp.  et   RR.  de  Judiciis  Eccleslasticis  Sum- 

mariis  (English,  Italian,  Latin) 198 

Instructio  S.  C.  de  Prop.  Fide,  circa  Causas  Clcricorum  .  .  199 
Instructio  S.  C.  de  Prop.  Fide,  de  Commissione  Investigationis  226 
Instructio  S.  C.  de  Prop.  Fide,  de  Suspensionibusex  Informata 

Conscientia 231 

Decretum  S.  C.  Epp.  et  RR.  pro  Causis  Criminalibus  .  .  234 
Extract  from  the  Circular  of  the  S.  Congregation  of  Bishops 

and  Regulars,  I  Aug.  1851 237 

Disjx)sitio  Provisoria  pro  Actis  Appeilationis  in  Causis  Crimi- 
nalibus. 26  Martii  1886 239 

Ex  Responso  S.  C.  de  Prop.  Fide,  13  Julii  1886  ....  240 
Constilutio  Ad  militantis 241 

Index 259 


REFERENCES, 

The  asterisk  indicates  commentators  on  the  C.  J.  Can. 

Acta  Sanctae  Sedis.     Romae.     A  monthly  periodical   of   Roman   docu- 
ments and  decisions. 

AJP.-^Analecta  Juris  Poniificii.     Paris.,  A  French  monthly  periodical 
of  dissertations  and  official  documents  on  Canon  law  and  Liturgy. 

Bizzari,  Andr.     Collectanea   in   usum    Secretariae  S.  C.   Epp.  et    RR. 
Romae,  l886. 

Bouix.     Tractatus  de  Judiciis  Eccl.     2  vols.     Paris, 

Bouvier.     Law  dictionary.     2  vols.     Philadelphia,  1885. 

C.  PI  B.  ///.  =Acta  et  Decreta  Cone.  Plan.  Baltimorensis  IIL 

Cavagnis.     Institutiones  Juris  Publici  Eccl.     3  vols.     Romae,  1883. 

Craisson.     Manuale  totius  Juris  Canonici.     4  vols.     Pictavii. 

*De  Angelis.     Praelectiones  Juris  Canonici.     4  vols.     Romae,  1877  ff. 

De  Montault.     Decreta  authentica  S.  C.  Immunitaiis.     Paris. 

Ferran.      Theorica   et    praxis   regiminis    dioecesani,    praesertim   sede 
vacante.     Parisiis,  1S76. 

Ferraris.     Prompta  Bibliotheca  Canonica,  etc.     New  edition.     9  vols. 
Romae,  1886. 

*Grandclaude.     Jus  Canonicum.     3  vols.     Paris,  1882. 

Henry  and  Harris.     Ecclesiastical  Law  (Methodist).     N.  Y.,  1872. 

Hergenrotlier,  Jos.  Card.     Catholic  Church  and  Christian  State.     2  vols. 
London,  1876. 

Irish  Ecclesiastical  Record.     Dublin.     An  excellent  theological  and  pas- 
toral monthly. 

Lucidi.     De  Visitatione  SS.  Liminum.     3  vols.     Romae,  1883. 

Mai-tin.     Collectio  documentorum  Cone.  Vaticani.     Paderbornae,  1873. 

Monacelli.     Formularium  legale  practicum  fori  eccl.     4  vols.     Romae. 

Pallotini.     Pugna  Juris  Pontificii  statuentis  suspensiones  extrajudicialiter 
seu  ex  inf.  conscientia,  etc.     Viennae,  1863. 

Pastor,  7 he.     A  monthly  journal  for  priests.     N.  Y. 

Pierantonelli.     Praxis  fori  Ecclesiastici.     Romae,  1883. 

Phillips.     Compendium  Juris  Eccl.     Ratisbonae.  1875. 

Prompsault.     Dictionnaire  de  Droit  et  Jurisprudence  en  malifere  civile- 
^cclcsiastique.     3  vols.     Paris:  Migne. 

*Reiffenstuel,     Jus  Canonicum  Universum.     7  vols.     Paris. 

Richter  et  Sehulte,    Canones  et  Decreta  Cone.  Tridentini  Accedunt  S.C.C. 
declarationes,  etc.     Llpsiae,  1853. 

Rota.     Enchiridion  Confessarii  et  Judicis  Eccl,     Taurlnis,  1884. 

*Sanli.     Praelectiones  Juris  Canonici.     5  vols,     Ratisbonae,  1886. 

Sanguineti.     Juris  Eccl.  Privati  Institutiones.     Romae,  1884. 

* Schmahgruber.     Jus  Eccl.  Universum.     i»  vols.     Romae. 

Smith.     Elements  of  Ecclesiastical  Law.     3  vols.     N.  Y.     1887. 

Stremler.     Traitfe  des  Peines  ]£ccl6siastique8,  etc.     Paris,  i860. 
Thotnassini.     Vctus  Ecclesiae  Discipllna. 
Van  Espen.     Jus  Ecclesiastlcum  Universum. 


CANONICAL   PROCEDURE. 


Snttotructton* 


CHAPTER   I. 

OBJECT  OF  THE  ECCLESIASTICAL  LAW  OF  DISCIPLINARY 
AND   CRIMINAL  PROCEDURE. 

I.  The  right  to  threaten  with  punishment  certain 
actions  of  her  members,  the  Catholic  Church  received 
from  her  Divine  Founder  at  her  very  origin.'  She  cannot 
give  up  this  right,  for  that  were  to  give  up  her  existence; 
to  deny  her  this  right  were  to  deny  her  the  right  to  ex- 
ist. It  is,  rather,  one  of  her  most  important  duties  to  ex- 
ercise this  right  to  punish,  and  indeed  history  shows  that 
she  has  ever,  from  her  foundation  to  tiie  present  day, 
successfully  administered  it. 

In  the  exercise,  however,  of  this  right  of  discipline  and 
punishment  the  Church  has  not  only  to  make  disciplinary 
and  penal  laws  to  be  observed  by  her  members,  but  also 
actually  to  apply  them  in  a  given  case.  The  latter  takes 
place  in  disciplinary  and  criminal  procedure,  the  end  and 
object  of  which  is,  first,  a  judgment  to  determine  whether 
a  person  by  a  determinate  act  has  violated  a  penal  law 
and  what  punishment  he  has  thereby  incurred  ;  secondly, 
the  infliction  of  the  penalty.  The  penal  precept  is  laid 
down  by  positive  law,  the  violation  thereof  is  determined 
by  means  of  an  inquiry,  and  the  judgment  or  sentence  is 
then  the  result  of  a  logical  inference,  namely: 
'  Matt,  xviii.  15-18. 


1 6  Introduction. 

Major :  The  clergyman  who  forges  papal  instruments 
shall  be  degraded.  Minor:  But  the  clergyman  "  N."  has 
forged  a  papal  instrument. 

Conclusion  :    Therefore  Rev.  •'  N."  shall  be  degraded. 

Criminal  law  or  jurisprudence  may  be  said  to  comprise 
two  distinct  parts,  namely,  the  law  concerning  the  crimes 
themselves  and  their  corresponding  punishments  (ma- 
terial Cr.  L.') ;  and  the  law  of  determining  the  existence 
and  nature  of  crime  in  a  particular  case  and  of  applying 
the  right  penalty,  or  the  Rules  of  Criminal  Procedure 
(formal  Cr.  L.'). 

2.  Whether  a  person  have  actually  committed  a  delict, 
and  if  so,  what  be  its  disciplinary  or  criminal  nature, — in 
other  words,  what  be  the  real  matter  of  fact, — can  only 
be  determined  by  inquiry  and  information.  But  as  to 
how  this  is  to  be  done,  and  how  the  judge  may  be  con- 
vinced of  the  commission  of  such  crime  by  such  person, 
nations  have  held  different  views  at  different  times ;  in- 
deed, in  every  single  case  those  of  the  judge,  accuser,  and 
accused  would  almost  always  differ.  Hence  the  very 
mode  and  manner  of  proceeding  in  a  given  case,  in 
order  to  ascertain  the  criminal  character  of  an  act,  to 
refer  it  to  its  class  in  the  criminal  law  and  to  impose 
the  penalty  incurred  :  the  modus  procedendi  itself  must  be 
regulated  by  law.  The  Catholic  Ciiurch  must,  therefore, 
establish  legal  norms  of  disciplinary  and  criminal  proced- 
ure, and  in  fact  she  has  done  so.  It  is  the  object  of  the 
science  of  ecclesiastical  criminal  procedure  to  establish 
scientifically,  to  combine  organically,  and  further  to  de- 
velop the  positive  rules  of  procedure. 

3.  Ecclesiastical  punishments  are  by  custom  divided 
into  corrective  and  vindictive  (simply  or  strictly  called 

'  These  terms  are  explained  by  the  fact  that  the  first  part  treats  of  the 
matter  {inateria)  on  which  judgment  is  to  be  given,  the  other  of  the 
form  {forma)  of  it. 


Canon  and  Civil  Law.  17 

punishments),  according  as  the  primary  object  is  either 
the  correction  {disciplitui)  of  the  offender,  or  retribution 
and  expiation  of  the  offence.'  According  to  this,  we  may 
distinguish  between  disciplinary  and  criminal  proceed- 
ings. By  most  punishments,  however,  both  objects  may 
be  attained,*  and  as  in  order  to  estabHsh  the  matter  of 
fact  a  more  or  less  formal  proceeding  takes  place  in  every 
case,  the  terms  disciplinary  punishment  and  strictly  called 
punishment  as  well  as  disciplinary  and  criminal  procedure 
are  often  exchanged  ;  the  more  as  the  boundary  line  be- 
tween them  cannot  be  easily  drawn  in  practice.  There- 
fore in  the  following  pages  we  use  both  terms  indiscrim- 
inately where  they  are  not  logically  opposite. 


CHAPTER  II. 

RELATION    BETWEEN    THE    CANON    AND    CIVIL    LAW   OF 
CRIMINAL    PROCEDURE. 

4.  The  rights*  of  the  Church  in  the  domain  of  criminal 
procedure,  abstractly  considered,  are  exactly  coextensive 
with  her  material  criminal  law.  Besides  the  Church,  the 
State  also  exercises  criminal  jurisdiction  over  its  subjects, 
many  of  whom,  if  not  all,  are  at  the  same  time  members 
of  the  Catholic  Church. 

'  There  is  yet  another  end  of  punishment,  namely,  the  preservation  of 
public  order  and  the  protection  of  society  and  its  members.  This  end, 
however,  may  be  said  to  be  attained  partly  by  the  reform  of  ihe  offender, 
partly  by  upholding  the  sanctity  of  the  law,  the  moral  sense  of  the  public, 
and  love  of  order  by  the  expiation  of  the  crime. 

^  Rota,  p  549  remarks:  "Certum  est  quod  ecclesia  quam  caritas 
materna  exercet  duo  tantum  habet  proposita  in  poenis  infligendis;  primum 
ut  peccator  ad  bonam  frugem  redeat,  alterum  ut  cetcri  exemplo  poenae  a 
crimine  deterreantur.  Non  enim  invenies  in  Ecclesia  elatos  pasiorrs  qui 
vulnerari potius  quam  emendare  norunty     (Isid.  Hispal.) 

•  On  the  present  chapter  cfr.  PieranloneUi ,  tit.  i. 
2 


1 8  Introduction. 

But  the  Catholic  Church,  differing  herein  from  the  State, 
has  a  twofold  criminal  tribunal,  2i  forum  internum  and  a 
forum  externum.  The  State,  on  the  other  hand,  has  only  a 
forum  externum,  for  cte  intcrnis  nonjudicat  praetor.  In  the 
forum  internum  the  Church  views  the  punishable  act  as 
sin  and  the  punishment  as  penance,  wiiose  aim  is  rather 
to  correct  the  sinner  than  to  get  satisfaction.  Church 
and  State,  however,  share  jurisdiction  in  regard  to  such 
criminal  acts  as  belong  to  the  forum  externum  and  for 
which  punishment  is  inflicted  as  a  retribution.  But  the 
question  whether  the  criminal  cause  belong  to  the  ecclesi- 
astical or  the  secular  court  depends  upon  the  preliminary 
question  whether  the  particular  cause  lie  within  the  com- 
petency of  the  one  or  the  other  legislative  power.  To 
solve,  in  some  degree,  this  preliminary  question,  eccle- 
siastical penalties  are  divided  into  spiritual  and  tempo- 
ral.' Spiritual  punishments  consist  in  the  withdrawal  of 
spiritual  goods,  rights,  and  offices.  Temporal  punishments 
have  the  loss  of  temporal  goods  and  rights  for  their  ob- 
ject. 

There  is  no  doubt  that  the  Church  has  the  power  to  im- 
pose spiritual  punishments.  .  .  ^  The  Church,  as  history 
teaches,  has  in  fact,  when  not  prevented  by  the  State,  in- 
flicted all  kinds  of  temporal  punishment  except  those  of 
death  and  mutilation.  The  State  has  not  as  yet  anywhere 
sought  to  set  aside  on  principle  the  right  of  the  Church 
•  Moulart.  L'Eglise  et  I'Etat.  424. 

'  The  author  in  the  passage  here  omitted,  having  stated  that  the 
Church  should  not,  in  fact  cannot,  punish  by  death  or  mutilation,  and 
that  as  regards  other  corporal  or  temporal  penalties  the  Church  has  cer- 
tainly a  historical  or  prescriptive  right  to  inflict  them,  maintains  that 
such  a  right  cannot  be  proved  "by  principles,"  i.e.,  as  we  understand 
the  phrase,  from  the  very  nature  and  constitution  of  the  Church.  To  us 
thj  affirmative  seems,  on  theological  grounds,  the  only  safe  opinion. 
Consult  Murray,  De  Ecclesia,  vol.  iii.  pp.  103,  119  ff.;  Tapparclli,  Saggio 
theoretico  §  1483  ff. ;  Siremkr.  p.  13  ff . ;  Craisson,  n.  5501  fT. ;  Sckneeman^ 
Die  kirchiiche  Gewalt,  §  ii.;  Cavagnis,  i.  n.  279  ff. 


Canon  and  Civil  Law.  19 

to  institute  and  carry  out  disciplinary  and  criminal  pro- 
ceedings before  its  own  ecclesiastical  courts  in  disciplinary 
and  criminal  causes  against  clerics. 

5.  The  State,  however,  has  but  too  often  invaded  the 
sphere  of  ecclesiastical  jurisdiction,  partly  by  denying  and 
restraining  the  Church's  right  to  inflict  temporal  punish- 
ments and  partly  by  usurping  jurisdiction  even  in  purely 
spiritual  matters.  The  plea  for  this  usually  was  that  the 
Catholic  Church  had  on  her  part,  as  shown  by  history, 
invaded  the  jurisdiction  of  the  State.  The  truth  is  that 
whenever  the  Church  sat  in  judgment  over  purely  tem- 
poral matters  this  right  had  been  conceded  to  her  by  the 
State,  as  was  the  case  under  the  Christian  Roman  em- 
perors; or  the  people,  unable  to  get  any  justice  from  the 
shattered  and  impotent  secular  authority  and  its  courts, 
turned  to  the  Catholic  Church  who  had  a  nicely  wrought 
system  of  criminal  procedure  even  at  the  time  when  in 
the  secular  courts  the  proof  of  a  crime  committed  was  as 
yet  supplied  by  the  wager  of  battle,  the  ordeal,  and  the 
torture.  The  Catholic  Church  can  never  acknowledge 
the  jurisdiction  of  the  State  in  purely  spiritual  matters. 
She  has  ever  repelled  it ;  the  last  time  in  the  bull  Apos- 
tolica  Sedis  of  Pope  Pius  IX.,  October  12,  1869.' 

In  other  matters  Church  and  State  stand  apart  from 
each  other  as  two  independent  powers  who  had  best 
regulate  their  common  affairs  by  a  mutual  agreement,  in 
a  similar  way  as  was  done  for  the  courts  of  the  Papal 
States  by  the  Secretary  of  State,  Cardinal  Bernetti,  in 
November,  1831.  The  best  way  to  solve  this  difficult 
problem  history  and  reason  have  always  shown  to  be 
this,  that  the  Catholic  Church  cultivate  a  wise  criminal 
legislation  and  practice,  and  especially  provide  for  a  well- 
regulated  criminal  procedure ;  then,  that  the  State  lend 
her  its  physical  power,  wherever  she  may  need  it  to  en- 

Also  in  §t^  v.,  vi..  prop,  ig,  20,  30.  4:,  44,  Syllabus. 


20  Introduction, 

force  her  criminal  laws.     The  State  would  thus  fulfil  its 
duties  as  well  as  better  attain  its  objects. 

If,  however,  the  Catholic  Church  and  the  State,  each 
being  independent,  cannot  agree  on  this  common  do- 
main, a  conflict  will  naturally  arise  between  them.'  In 
such  a  case  the  Catholic  Church,  ever  inclined  to  peace, 
will  yield  in  point  of  fact  and  as  far  as  she  can  without 
endangering  her  own  existence,  founded  as  she  is  by  God 
and  destined  to  last  to  the  end  ;  but  at  all  times  she  will 
firmly  maintain  her  inalienable  rights.  Where  these 
cannot  be  fully  and  freely  exercised,  as  is  the  case  at 
present  in  many  European  countries,  e.g.,  in  Prussia,  she 
allows  them  to  lie  dormant  for  a  time,  and  is  satisfied 
with  imposing  such  penalties  as  naturally  cannot  be 
grasped  by  the  physical  power  of  the  State.' 


CHAPTER   III. 


SOURCES  OF  THE   PRESENT  CANONICAL  CRIMINAL  PRO- 
CEDURE. 

6.  Three  elements  of  a  regulated  criminal  procedure, 
viz.,  the  accusation,  the  trial,  and  the  judgmejit  which 
constitute  its  essence,  belong  to  the  natural  law.  To 
these  essential  elements  of  every  criminal  procedure  the 
ecclesiastical  judge  of  the  first  centuries  of  Christianity 
would  add,  from  the  Roman  law,  such  rules  ahid  regula- 

'  On  the  Pre-eminence  of  the  Church  over  the  State  see  Card.  Hergen- 
roether.  Cath.  Church  and  Christian  State,  vol.  ii.,  essay  xiii.,  part  i. ;  also 
Card.  Tarquini,  Jus  Eccl.  Publ.,  i.  I.  n.  33  ff.,  '•  De  statu  conflictus." 
and  again  n.  55  ff. ;  Cava\:;nis,  I.  n.  350  ff. ;  Allies,  Church  and  Slate, 
pp.  70  ff. 

'  Cfr.  the  pertinent  remarks  on  ihe  priviUgiutn  fori  in  The  Pastor,  \\, 
pp.  193. — As  a  historical  commentary  on  this  whole  chapter  read  Card, 
Hergenroether,  1.  c. .  essay  xv.,    "  Eccl.  Jurisdiction." 


Sources  of  the  Present  Procedure.  2 1 

tions  as  appeared  to  him  useful  for  his  purpose.  Thus 
simply  by  practice  was  formed  the  so-called  Procedure  by 
way  of  Accusation,  analogous  to  the  Roman,  and  adopted 
by  Gratian  in  the  Decretum.  It  remained  the  usual 
criminal  procedure  till  the  time  of  Pope  Innocent  III., 
whose  legislation  marks  an  epoch  even  in  the  history  of 
secular  criminal  law.  It  was  he  that  brought  forth  a  new 
work,  the  Procedure  by  way  of  Inquisition. 

The  greater  number  of  Papal  ordinances  concerning 
ecclesiastical  criminal  procedure  are  contained  in  the 
Decretals  of  Gregory  IX.,  first,  second,  and  fifth  books, 
which  modify  many  older  rules  contained  in  the  Decre- 
tum Gratiani.  The  later  Popes  down  to  the  Council  of 
Trent  have  made  but  few  new  regulations.  The  Corpus 
Juris  Canonici  does  not  itself  contain  a  complete  system 
of  ecclesiastical  criminal  law.  This  has  to  borrow  from 
the  Roman  law  many  maxims,  of  which  only  some,  i.e., 
such  as  could  be  modified,  are  received  in  the  canonical 
law  books.  For  points  of  criminal  procedure  which  are 
wanting  in  the  Corpus  Juris  Canonici,  practitioners  and 
canonists  of  all  times  refer  to  the  Corpus  Juris  Civilis  as 
containing  a  source  of  valid  law  for  the  Roman,  i.e.,  the 
Catholic  Church.  Besides,  the  laws  of  civil  and  crimi- 
nal procedure  were  formerly  not  so  sharply  distinguished 
as  at  present,  and  many  rules  of  civil  procedure  were  ap- 
plicable in  criminal  trials. 

7.  Thus,  indeed,  the  Council  of  Trent  found  a  complete 
system  of  ecclesiastical  criminal  procedure  of  which  the 
foundation  was  the  Corpus  Juris  Canonici,  but  the  com- 
plement in  the  Corpus  Juris  Civilis.  The  Council  of 
Trent  effected  many  and  especially  radical  changes  in 
criminal  jurisdiction,  and  introduced  the  important  Sen- 
tentia  ex  infonnata  conscientia. 

Since  then,  however,  the  development  of  the  law  in 
this  particular  has  not  been  at  a  stand-still.     It  is  pre- 


22  Introduction. 

cisely  the  law  of  criminal  procedure,  more  than  any  other 
part  of  public  law,  concerning  which  the  views  of  the 
times  depend  upon  the  existing  political  conditions,  and 
where  the  intellectual  and  moral  development  of  the 
several  nations  and  states  must  be  taken  into  considera- 
tion. But  more  especially  is  to  be  borne  in  mind  that 
criminal  procedure  is  but  a  means  to  an  end.  This  end, 
indeed,  must  always  necessarily  be  attained,  yet  the 
means  thereto  are  different.  Of  these  now  one  then 
another  may  appear  more  appropriate  according  to  cir- 
cumstances and  views.  Finally,  one  cannot  ignore  the 
fact  that  science  also  has  made  progress  upon  this  field. 

Since  the  Council  of  Trent  the  Popes  by  enacting  for 
the  whole  Church  general  norms  only  of  criminal  pro- 
cedure, have  made  little  allowance  to  the  needs  of  the 
time.  We  may  except  the  celebrated  Constitution  of 
Benedict  XIV.,  Ad  militantis,^  by  which  he  abolished 
some  abuses  in  appeals  and  inhibitions.  Development 
of  the  law  in  this  particular  could  only  proceed  byway  of 
custom  and  special  legislation.  Yet  even  the  ecclesiasti- 
cal law  of  custom,  especially  after  the  Church  has  at- 
tained her  immense  international  extent,  can  be  only 
particular  or  local  law.  This  becomes  still  more  evident 
when  we  consider  how  differently  civilization  was  devel- 
oped among  the  nations,  and  how  manifold  and  various 
were  the  relations  between  Church  and  State. 

The  Catholic  Church  has  everywhere  within  the  last 
centuries  endured  great  trials ;  in  Germany,  in  particular, 
other  ecclesiastical  societies  combined  with  the  temporal 
power  to  oppose  her.  In  many  other  countries  she  could 
not  for  a  long  time  exercise  her  criminal  jurisdiction  in 
the  manner  desired  by  Canon  law,  much  less  could  she 
think  of  further  development  in  the  proper  sense." 

'  See  Appfiidix. 

*  The  author  gives  here  a  very  short  sketch  of  the  history  of  Canonical 


Sources  of  the  Present  Procedure.  23 

Of  the  highest  importance  for  ecclesiastical  jurispru- 
dence everywhere  is  the  progress  of  canonical  criminal 
law  in  Italy.  There  the  Popes  themselves  continued 
to  legislate  on  criminal  procedure,  a  duty  which  they 
couid  the  less  forsake  that  they  had  also  temporal  do- 
minion over  the  Papal  States.  They  usually  availed 
themselves  of  the  Congregation  of  Bishops  and  Regulars 
to  issue  new  ordinances  for  the  canonical  trial.  Clement 
VIII.  and  Urban  VIII.  issued  decrees  touching  appeals 
and  inhibitions,  which  Benedict  XIII.  expounded  at  the 
Roman  Council  of  1725,  where  he  also  abolished  the  oath 
of  the  accused.  After  Benedict  XIV.  had  by  the  afore- 
mentioned constitution  Ad  militantis  regulated  the  same 
matter,  Pius  VII.  by  the  bull  Post  diiiturnas  defined  the 
competency  of  the  Congregation  of  Bishops  and  Regu- 
lars in  criminal  matters.  In  fact  this  Congregation  has 
in  the  present  century  issued  a  series  of  important  de- 
cisions upon  ecclesiastical  criminal  procedure,  e.g.,  upon 
the  legalization  of  causes  in  1832,  on  appeals  and  appel- 
late courts  in  1835  and  1851.' 

8.  On  June  nth,  1880.  our  present  gloriously  reigning 
Pope  Leo  XIII.  issued,  through  the  Congregation  of 
Bishops  and  Regulars,  an  instruction  for  ecclesiastical 
courts  on  the  summary  process  in  disciplinary  and  criminal 
cases  against  clerics,  which  deals  almost  exclusively  with 
the  mode  of  procedure  and  is  formal  law  for  Italy  only.' 
This  instruction  is  the  more  remarkable  and  important 
that  it  comprises  the  most  essential  rules  of  canonical 
procedure  which  the   Roman  Congregations  for  the  last 

Procedure  in  Germany.  For  any  one  desirous  of  following  the  historical 
development  of  Ecclesiastical  Criminal  Law  since  the  Council  of  Trent, 
in  Austria.  France,  Germany,  and  Italy,  we  know  of  no  better  source  of 
information  than  the  famous  "  ColUctio  Laceusis  Conciliortun  Ktcen- 
tivrum,"  5  vols.,  published  by  Herder  in  Freiburg,  Baden,  1870  ff. 

•  See  Appendix. 

'  See  Preface. 


24  Introduction. 

three  centuries  have  held  to  be  applicable,  and  have 
themselves  made  use  of,  although  not  so  much  for  their 
own  tribunals  where  some  departure  from  ordinary  pro- 
cedure takes  place,  but  rather  for  the  courts  of  the  lower 
instance,  the  legal  validity  of  whose  causes  they  have  to 
examine  as  appellate  courts  or  higher  instance.  With 
only  a  few  exceptions  that  instruction  is  composed  ver- 
botenus  of  the  numerous  rescripts  of  those  Congregations. 
It  is,  in  one  word,  the  result,  compressed  into  short  para- 
graphs, of  the  development  of  ecclesiastical  disciplinary 
and  criminal  procedure  as  it  progressed  in  the  course  of 
centuries  formally  and  explicitly  in  Italy,  substantially  in 
the  whole  Catholic  Church.' 

It  would  appear  that  the  result  of  the  growth  of  par- 
ticular laws  on  ecclesiastical  procedure,  being  influenced 
by  so  many  different  agents,  should  be  exceedingly 
varied  and  unequal  according  to  different  countries, 
provinces,  and  dioceses  of  the  Church.  Yet  if  we  com- 
pare them  so  far  as  they  are  accessible  to  us,  we  find  a 
remarkably  slight  difference.  This  circumstance  arises 
from  the  fact  that  the  gradual  advancement  started  from 
an  already  well-developed  and  solid  foundation,  the  gen- 
eral Canon  law,  and  progressed  but  very  slowly.  Be- 
sides, there  was  Italy  and  especially  Rome,  where  on 
account  of  the  larger  practice  the  development  was  al- 
ways a  few  degrees  in  advance,  to  serve  as  a  standard. 
Not  only  that.  The  various  particular  laws  found  also 
at  Rome  their  centre  of  unity;  for  besides  the  fact  that 
the  positive  leges  script ae particular es  were  to  be  submitted 
to  the  Popes  for  examination  and  approbation,  there  was 
at  Rome   the  supreme  court  where  all  complaints  and 

'  "  h  would  seem  that  in  this  Italian  Instruction  we  have  the  ground- 
work of  what  is  destined  to  become  the  mode  of  proceeding  in  criminal 
and  disciplinary  causes  of  the  clergy  throughout  the  universal  church." — 
The  Pastof,  \i,  194. 


Plan  of  this  Work,  25 

recourses  relative  to  criminal  trials  were  finally  brought 
together  and  acted  upon. 

The  decisions  of  the  Roman  Congregations,  therefore, 
in  regard  to  disciplinary  and  criminal  procedure  continue 
to  be  a  steadily  flowing  source  and  regulating  principle 
of  the  law  of  ecclesiastical  criminal  procedure. 


CHAPTER    IV. 

PLAN    OF   THIS   WORK. 


9.  Ecclesiastical  criminal  procedure  cannot  be,  as  ex- 
perience teaches  and  as  we  have  already  mentioned  (n.  3), 
without  just  and  legally  regulated  forms,  if,  on  the  one 
hand,  the  Church  would  accomplish  her  object  and  fulfil 
her  duty  of  maintaining  order  and  discipline,  and,  on  the 
other  hand,  would  assure  those  whom  it  mostly  concerns 
of  the  justice  of  her  proceedings.  In  every  criminal 
procedure  we  must  distinguish  between  material  forms, 
that  is,  those  whose  non-observance  would  make  the 
proceeding  void,  and  immaterial  forms  which  may  be 
neglected  without  the  proceeding  becoming  void  on  that 
account, — a  distinction  very  similar  to  that  between 
preceptive  and  mere  directive  rubrics  in  Liturgy.' 

The  substantial  requisites  and  formalities  of  procedure 
must,  therefore,  be  the  same  in  all  ecclesiastical  tribunals  ; 
to  depart  from,  or  omit,  them  altogether  as  a  rule  cannot 
be  thought  of;  for  every  such  proceeding  would  be 
eventually  amended  or  simply  reversed  at  least  by  the 
highest  instance.  On  the  contrary,  accidental  formalities, 
mere  directive  norms  may  be  different  in  the  one  and 

'  On  these  material  (essential,  substantial)  and  immaterial  (non-essen- 
tial, accidental)  forms,  cfr.  below,  n.  50  fif. 


26  Introduction. 

the  other  court  according  as  either  the  bishop  has  laid 
down  or  practice  estabhshed  obhgatory  forms ;  their 
choice,  appHcation,  or  omission  depends  upon  various 
circumstances  and  reasons  of  expediency. 

Canon  law  contains  many  cumbersome  and  vexatious 
though  in  themselves  quite  immaterial  forms,  taken  from 
the  Roman  law,  and  which  the  canonical  codes  no  less 
than  the  older  practice  declared  essential  and  obligatory. 
It  was  on  these  forms  that  disputes  continually  arose 
concerning  the  violations  of  the  rules  of  procedure ;  and 
the  frequent  reversals  and  long  delays  of  causes  brought 
the  whole  procedure  into  discredit,  until  finally  those 
forms  went  out  of  use  in  one  court  after  the  other,  as 
they  had  already  in  the  supreme  court  at  Rome. 

The  progress  of  the  Catholic  Church  at  present  is  of 
the  kind  that  while  internally  she  is  growing  in  strength 
and  power,  yet  in  unfolding  her  external  life  she  is  con- 
fined to  the  minimum.  The  ecclesiastical  law  of  criminal 
procedure  also  has  endeavored  to  divest  itself  as  much  as 
possible  of  all  empty  forms,  and  instead  of  them  to  offer 
better  services  to  justice.  It  thus  happens  that  almost 
everywhere  in  the  Catholic  Church  criminal  procedure 
puts  on  a  summary  character,  that  is  to  say,  it  discards 
all  those  unsuitable  and  troublesome  forms  just  above 
mentioned.     Rome  herself  and  Italy  give  the  example. 

lo.  We  intend,  in  the  following  pages,  to  give  a  short 
systematic  exposition  of  canonical  disciplinary  and  crim- 
inal procedure  against  ecclesiastics.  We  exclude,  there- 
fore,  from  our  treatise  the  criminal  procedure  against 
laymen.  Against  these  the  Church  nowadays  proceeds 
only  in  case  of  very  great  necessity,  viz.,  when  by  their 
conduct  they  give  great  public  scandal. 

In  the  course  of  centuries  several  kinds  of  canonical 
criminal  procedure  against  ecclesiastics  were  contem- 
poraneously and  successively  in  use,  but  are  no  longer  at 


Plan  of  this  Work.  2  7 

present.  Setting  aside  the  Notorinm  and  the  Daiuntiatio 
in  its  canonical  technical  meaning,  the  so-Z2i\\cidi  Procedure 
by  Inquisition  will  be  found  to  be  almost  the  only  one  in 
practice.  It  has,  however,  nowhere  been  kept  in  its 
purity,  but  has  especially  in  recent  times  approached  the 
Procedure  by  Accusation.^ 

We  shall  occupy  ourself  with  explaining  only  the 
ecclesiastical  disciplinary  and  criminal  procedure  as  now 
in  use,  and  shall  keep  out  long  historical  discussions,  as 
also  the  solemnitaies  et  strepitus  jiidicii.  Still  we  do  not 
confine  ourself  to  strictiy/wdf/W^/ proceedings,  but  speak 
likewise  of  extrajudicial  actions.  This  with  a  greater 
right  since  the  latter  often  stand  in  relation  to,  and  con- 
nection with,  the  former  and  should,  whenever  possible, 
precede  it.  It  is  in  the  nature  and  spirit  of  the  Catholic 
Church  that,  where  it  will  suffice,  extrajudicial  proceed- 
ings should  be  the  rule. 

In  regard  to  the  matter  to  be  presently  dealt  with,  we 
have  only  to  remark  that  we  shall  make  use  of  the  sources 
mentioned  in  the  preceding  chapter  as  they  deserve. 
After  what  was  said  there  we  need  not  explain  why  we 
adhere  with  partiality  to  the  rules  of  the  Instructio  of 
1880,  and  why  we  give  it,  where  it  goes  beyond  the  older 
Canon  law,  the  preference  over  mere  private  opinions  of 
canonists.  We  shall  distinctly  mark  the  essential  or 
substantial  requirements  of  the  procedure.  Directive 
norms  we  take,  so  far  as  they  cannot  be  found  in  law 
books,  from  decisions  of  the  Roman  Congregations.  We 
are  ready  to  hear  practitioners  object  that  many  things 
are  managed  differently  with  them,  and  we  have  no  objec- 
tion if  they  desire  to  retain  their  fond  old  customs. 

'  See  below,  n.  47  ff. 


iFirst  llart 

ECCLESIASTICAL    JUDICATURE     FOR     DISCIPLINARY 
AND  CRIMINAL  CASES  OF   CLERICS. 


SECTION   I. 


ECCLESIASTICAL  DISCIPLINARY  AND  CRIMINAL  JURIS- 

DICTION. 


CHAPTER  I. 

ORDINARY   AND   QUASI-ORDINARY   JURISDICTION. 

II.  The  powers  of  the  ecclesiastical  judicature  are  di- 
vided by  canonists  of  more  recent  times  into  jurisdictio 
ordinaria,  quasi  ordinaria  or  vicarial  and  delegata.  This 
division,  though  not  entirely  satisfactory,  may  yet  be  kept 
in  ecclesiastical  criminal  law. 

The  Pope  has  jurisdiction  over  the  whole  Catholic 
Church,  and  each  bishop  over  his  diocese.  Their  juris- 
diction is  ordinary  {J.  ordinaria),  because  their  ofifices 
with  and  by  which  they  receive  jurisdiction  are  perma- 
nent institutions  of  the  Church,  and  consequently  their 
jurisdiction  is  permanent  and  regular.  The  bishop  is  the 
Ordinary /t7r  excellence.  To  the  ordinaries  the  instruction 
L Ordinario  is  addressed. 

The  Pope  and  the  bishops  have  ordinary  jurisdiction  by 
divine  law.     In  the  course  of  time  positive  law  resulting 

'  Cfr.  Commentators,  in  1.  i.  tit.  31. 


Ordinaiy  Jurisdiction.  29 

from  previous  facts  gave  ordinary  jurisdiction  also  to 
Archbishops,  Patriarchs,  Primates,  Exarchs,  the  Papal 
Vicars  of  Thessalonica  and  Aries,  and  those  Papal  author- 
ities in  Rome  to  whom  in  certain  matters  the  regular 
power  to  decide  has  been  granted.* 

Upon  a  very  peculiar  legal  title,  finally,  rests  the  ordi- 
nary jurisdiction  which  the  exempt  Prelates  with  quasi- 
episcopal  authority,  the  regular  chapters,  and  the  Cardi- 
nals in  respect  to  their  titular  churches  enjoy." 

12.  Quasi-ordinary  or  vicarious  {vicaria)  jurisdiction* 
has  this  in  common  with  the  ordinary,  that  it  is  also 
united  with  an  office,  though  not  always  with  a  permanent 
one,  and  that  when  not  limited  by  statute  or  the  will  of 
the  appointer  it  is  generally  of  the  same  extent  as  the 
corresponding  ordinary  jurisdiction.  From  this,  however, 
it  differs  in  that  it  can  be  withdrawn  not  only  by  criminal 
sentence,  but  even  at  any  time  and  at  pleasure  by  the 
Pope  or  by  any  other  person  to  whom  such  right  belongs. 
Quasi-ordinary  jurisdiction  belongs  to  the  chapter  sede 
vacante,  or  more  correctly  to  the  vicar  capitular;*  also  to 
the  bishop's  Vicar-general,  the  Coadjutor  Bishop,  and  the 
Vicar  Apostolic. 

'  Decision  of  Gregory  XVI.,  1840.     AJP.  XII  ,  554,  943. 
'  Cardinals  have  no  longer  judicial,  but  only  administrative,  power  over 
their  churches.     See  Sanli,  1.  I.  tit.  31.  n.  36  ff. 

*  See  Commentators.  1.  I.  tit.  2S. 

*  Although  with  us  the  Administrator  of  the  diocese,  sede  vacante,  holds 
a  similar  position  as  elsewhere  the  Vicar  Capitular,  yet  his  jurisdiction  is 
not  vicaria  or  quasi-ordinary,  but  merely  delegated  Cfr.  C.  PI.  Bait.  II., 
n.  96fif. 


30  Ecclesiastical  Criminal  Jurisdiction. 


CHAPTER   II. 

DELEGATED   JURISDICTION. 

13.  Whoever  holds  ordinary  or  quasi-ordinary  jurisdic- 
tion has  the  right,  so  far  as  it  is  not  restricted  in  the 
latter  case,  to  transfer  his  judicial  power  to  another,  to 
delegate  it.  The  delegate  (substitute)  has  then  power  by 
transfer,  mandate,  or  commission  {J.  delegata,  also  called 
mandatei).^  Consequently  he  does  not  exercise  jurisdic- 
tion in  virtue  of  his  own  right,  which  he  originally  ob- 
tained with  an  office  or  the  like,  but  in  the  name  of  him 
who  has  charged  him  therewith. 

We  distinguish  between  delegatio  a  jure  (by  law)  and 
d.  ab  homine  (by  official).''  Delegated  jurisdiction  is  mostly 
of  the  latter  kind.  An  instance  of  the  former  we  have 
with  bishops  who  by  several  statutes  of  the  Council  of 
Trent,  therefore  by  law  or  a  jure,  are  made  once  for  all 
either  simply  or  moreover  {etiam)  delegati  Sedis  Aposto- 
licae  for  various  matters  which  were  formerly  reserved  to 
the  Pope,  or  at  least  were  generally  administered  through 
his  legates.  In  all  cases  in  which  the  bishops  act  simply 
as  {tanquaitt)  delegates  of  the  Apostolic  See,  they  have 
not  ordinary  jurisdiction,  otherwise  a  delegation  would 
have  no  sense.  On  the  contrary,  in  those  cases  in  which 
they  are  empowered  to  act  as  being  moreover  {etiam  tan- 
quant)  Apostolic  Delegates,  ordinary  jurisdiction  in  the 
matter  abstractly  considered   does   generally  belong  to 

'  Phillips,  g§  177,  178.  Bouix,  t.  i.  p.  142.  Craisson,  n.  307  and 
5?72  flf.     Commentators,  1.  i,  tit.  29. 

"  In  the  first  case  the  power  to  act  is  conferred  upon  the  delegate  or 
deputy  by  positive  law  or  statute,  whereas  in  the  latter  it  is  derived  di- 
rectly from  the  principal  whose  agent  the  delegate  becomes. 


Delegated  Jurisdiction.  31 

them,  but  some  particular  circumstance,  some  privilege, 
etc.,  coming  between,  the  object  of  their  jurisdiction  be- 
comes differently  qualified,  the  person  exempted,  etc.,  so 
that  ordinary  jurisdiction  now  no  longer  suffices,  and  con- 
sequently the  actual  jurisdiction  of  the  bishops  in  the 
matter  is  to  be  considered  as  being  obtained  by  papal 
delegation.  This  seems  to  us  with  Hinschius' the  only 
true  construction  of  the  phrase  etiam  tanquam  Sedis  Ap. 
delegati*  The  question  whether  in  a  particular  criminal 
matter  the  bishop  exercise  jurisdiction  as  Ordinary  or  as 
delegate  becomes  practically  very  important  in  two  cases. 
For  in  the  latter  supposition  the  metropolitan  court  is 
dropped  from  the  order  of  appellate  instances  ; '  and  when 
the  episcopal  see  becomes  vacant,  those  delegated  powers 
of  the  bishop  do  not  pass  over  to  the  chapter  or  the  vicar 
capitular.* 

To  be  capable  of  obtaining  delegation  to  exercise  ec- 
clesiastical disciplinary  and  criminal  authority,  the  dele- 
gate must  possess  the  same  qualities  which  in  these 
matters  are  required  of  the  ordinary  judge  and  which 
will  be  spoken  of  later  (n.  24  fT.).  Only  by  reason  of 
being  subject  to  the  delegating  person  as  to  his  superior 

'  Kirchenrecht,  I.  178. 

*  The  ordinary  view  is  that  in  those  cases  l-he  bishop  has  ordinary  as 
well  as  delegated  jurisdiction,  and  may  act  by  the  one  or  the  other.  In 
case  of  doubt  he  is  supposed  to  have  proceeded  by  delegated  power,  that 
being  the  more  honorable  one  as  coming  from  the  Pope.  Cratsson,  n. 
287;  Stremler,  p.  445;  De  Angelis,  h.  t.,  n.  2;   Sand,  h.  t.,  n.  3. 

'  The  appeal  will  lie  directly  to  the  Holy  See. 

*  There  is  yet  another  division  of  delegated  jurisdiction;  viz.  that  ob- 
tained by  jr/<'rja/ or  hy  general  delegation.  By  the  first  the  delegate  is 
empowered  to  transact  some  single,  special  matter  (ad  unum  negolium); 
by  the  latter  he  is  deputed  indiscriminately  for  a  whole  class  or  kind,  or 
even  several  kinds  of  affairs  {ad  universitatem  causarum).  Finally,  delega- 
tion by  official  may  be  respectively  called  official  or  personal,  accordingly 
as  it  was  given  either  in  view  of  the  office  and  rank  held  by  the  dele- 
gate, or  merely  because  of  his  personal  qualities. 


32  Ecclesiastical  Criminal  Jurisdiction. 

can  the  delegate  be  bound  to  accept  the  delegation. 
Hence  the  Pope  can  effectively  delegate  every  cleric  ;  but 
a  bishop,  as  a  rule,  only  his  diocesan  clergy.  However,  to 
decline  such  delegation,  if  done  so  for  good  reasons,  is 
allowable. 

A  delegate  has  not,  without  the  express  or  implied 
concession  of  the  law  or  the  principal,  the  right  to  transfer 
to  a  third  party  his  delegated  jurisdiction;  he  has  not,  as 
we  say,  the  right  to  subdelegate.  Such  right  belongs  to 
Papal  delegates  (except  the  delegation  be  personal^  and 
to  those  who  are  delegated  in  univej'sitatcm  causarum. 
Also  when  two  or  more  are  jointly  delegated,  any  one  of 
them  may  commit  his  part  to  some  one  else  or  to  one  of 
his  fellow-delegates.' 

14.  The  jurisdiction  of  the  delegate  begins  at  the  mo- 
ment he  receives  the  written  commission  (letters-patent) 
from  his  principal.'  Any  strictly  jurisdictional  acts  pre- 
viously done  are  void  ;  not  so,  however,  simple  inquiries 
made  for  the  sake  of  information.  Upon  demand  of  the 
parties  the  delegate  must  show  his  credentials.  His  juris- 
diction expires'  either  with  the  lapse  of  the  time  (term) 
for  which  he  was  delegated,  or  by  the  final  execution  of 
his  charge;  also  the  moment  he  receives  notice  of  a  recall 
by  his  principal,  which  the  latter  is  always  entitled  to 
make  ;  again  by  a  successful  recusation,  or  by  declaring 
himself  incompetent  because  of  defective  delegation. 
After  the  death  of  his  principal  the  delegate  can  only 
then  carry  the  proceedings  to  the  end,  if  they  are  already 
begun,  which  is  done  by  the  citation  of  the  parties.  Dele- 
gates by  law,  however,  do  not  lose  their  authority  by  the 
death  of  their  principal. 

'  c.  6,  X..  I.  29.    Santi,  h.  t  ,  n.  25  ff. 
'  c.  12.  X.,  n.  28.    Santi,  h.  t.,  n.  19  ff. 

*  On  ihe  cessation  of  delegated  authority  see  Santi,  h.  t.,  n.  33  ff. ;  Crais- 
son,  n.  490  ff. 


Delegated  Jurisdiction.  33 

By  the  death  of  the  delegate  himself  the  delegation 
terminates,  if  he  was  delegated  personally  and  not  as  the 
incumbent  of  an  office  of  fixed  duration  ;  since  in  the  latter 
case  the  delegation  usually  passes  to  his  successor  in 
office.  If  several  were  delegated  with  collegiate  or  asso- 
ciate power,  then,  by  the  death  of  one  the  commission  of 
the  others  also  terminates,  if  he  did  not  subdelegate 
some  one  else  in  proper  time  (provided  he  could  have 
done  so),  and  if  the  proceeding  was  not  already  under 
way. 

15.  The  nature  and  extent  of  the  delegated  power  is 
determined  by  the  written  commission  of  the  principal. 
Delegation  is  in  its  r\2iX.\\re  stricti Juris  {of  strict  interpre- 
tation) and  cannot,  therefore,  in  case  of  doubt  be  pre- 
sumed to  cover  other  cases  and  persons.'  Going  beyond 
the  commission  will  as  a  consequence  void  the  proceed- 
ings. If  several  are  delegated,  then  the  special  mandate 
passes  over  the  general,  and  a  later  one  over  the  earlier.* 
Where  special  commissions  of  equal  date  are  given  to 
several  delegates  in  solidum,  they  may  agree  among  them- 
selves to  leave  the  whole  cause  to  one  of  them.  If  any 
doubts  arise  among  them  on  the  powers  conferred,  and  if 
they  cannot  themselves  settle  the  question,  they  must 
choose  according  to  Canon  law  arbiters  to  do  it.' 

An  appeal  lies  from  the  delegate  to  his  principal ;  but 
if  a  Papal  delegate  has  sub-delegated  his  whole  commis- 
sion, he  drops  from  the  order  of  instances  and  the  appeal 
is  taken  immediately  to  the  Pope.  Likewise,  in  case  he 
had  given  over  part  only  of  his  commission,  if  he  die  or 
the  major  excommunication  be  passed  upon  him.     When 

'  S   C.  C.  22  May  1875:  apud  Ada  S.  S.  viii.  675. 

*  Commentators  in  1.  I.  lit.  3.  '*  de  rescriptis."     Sanii,  h.  t.,  n.  26  flf. 

*  c.  16,  X.,  h.  t.  On  Arbiters  cfr.  Commentators  in  1.  i.  tit.  43.  We 
omit  here  from  the  author's  text  a  paragraph  on  joint  delegation.  Cfr. 
on  the  subject  Santi,  I.  I,  tit.  29.  n.  25  ;  Craisson,  n.  5575  ff. 


34  Ecclesiastical  Criminal  Jurisdiction. 

two  of  the  three  delegated  judges  have  transferred  part 
of  their  authority  to  two  other  persons,  and  now  these 
sub-delegates  proceed,  in  the  matter  committed  to  them, 
jointly  with  the  third  delegate,  then  the  appeal  from  their 
decision  does  not  lie  to  the  first  two  delegates,  but  to  the 
original  mandator.'  Again,  an  appeal  may  be  made  from 
a  sub-delegate  in  partem  on  the  plea  that  the  principal 
died  before  either  the  delegate  or  sub-delegate  had  in  any 
manner  begun  the  action.  In  this  case  the  appeal  would 
have  to  go,  not  to  the  delegate,  whose  jurisdiction  is 
denied,  but  rather  to  the  principal.  The  same  must  be 
observed  in  all  cases  where  the  jurisdiction  of  the  dele- 
gate is  put  in  question.  For  by  appealing  on  that  plea 
from  the  sub-delegate  to  the  delegate  the  appellant  would 
at  the  same  time  admit  and  yet  deny  his  jurisdiction,  and 
thus  contradict  himself.' 


CHAPTER  III. 


DISCIPLINARY  AND  CRIMINAL  JURISDICTION  OF  VICARS 
GENERAL. 

i6.  The  vicar-general'  is  the  ordinary  representative  of 
the  bishop  also  in  criminal  jurisdiction.  His  jurisdiction, 
however,  ceases  when  the  bishop  himself  conducts  pro- 
ceedings ;  it  is  suspended,  if  the  bishop  or  himself  be 
suspended,  interdicted,  or  excommunicated  ;  it  terminates 
immediately  with  the  death  of  the  bishop,  in  whatever 
stage  the  cause  may  happen  to  be.     In  this,  indeed,  it 

*  c.  3,  in  6°,  I.  14. 
'  c.  14.  ibid. 

'  Commentators  deal  with  this  question  under  tit.  28,  De  officio  vicarii, 
1.  I.     Bouix,  I.  p.  413  ff  ;   Craisson,  n.  1162. 


Jurisdiction  of  Vicar-General.  35 

differs  from  delegated  jurisdiction  by  which  the  delegate 
can  at  least  finish  a  proceeding  already  begun.  Besides, 
the  vicar-general  can  be  dismissed  at  any  time,  at  the 
pleasure  of  the  bishop. 

This  jurisdiction  of  the  vicar-general,  however,  does  in 
no  way  extend  to  all  criminal  matters.  In  some  acts,  as 
we  shall  see  later,  he  cannot  represent  the  bishop  at  all. 
According  to  law  and  custom,  general  criminal  jurisdic- 
tion is  not  conferred  by  the  instrument  by  which  one 
is  appointed  vicar-general.  In  fact,  he  is  deprived  of  al- 
most all  criminal  jurisdiction,  especially  in  more  weighty 
matters.'  Even  those  faculties  which  are  otherwise  gen- 
erally contained  in  such  a  commission,  the  bishop  can 
withhold. 

Criminal  judicial  powers,  however,  though  not  contained 
in  his  general  commission,  may  be  given  to  the  vicar- 
general  by  a  special  mandate  from  the  bishop,  except  in 
the  cases  reserved  by  the  law.  This  can  be  done  in  two 
ways,  either  for  all  cases  that  may  arise,  or  only  for  a 
single  case  that  has  already  arisen.  In  the  first  case,  the 
transfer  will  hardly  be  made  otherwise  than  upon  the 
vicar-general  as  such,  so  that  in  virtue  of  a  special  man- 
date given  in  his  letters  of  appointment,  he  exercises 
criminal  jurisdiction  in  general  or  with  certain  restric- 
tions as  vicar-general  or  representative  of  the  bishop, 
and  not  purely  as  delegate.  In  the  second  case,  when 
he  is  clothed  with  special  power  for  a  particular  cause, 
it  may  sometimes  be  doubtful  whether  it  was  conferred 
upon  him  as  vicar-general,  or  whether  he  has  only 
become  a  simple  delegate.  This  question  is  practically 
of  great  importance,  for  no  appeal  lies  from  the  vicar- 
general  as  such  to  the  bishop;  but  it  does,  when  he  acted 
only  as  episcopal  delegate.  As  his  commission,  however, 
i.i  in  every  case  conferred  in  writing,  recourse  must  first 

'  Samti,  1.  I.  tit.  28,  n.  32. 


36  Ecclesiastical  Criminal  Jurisdiclion. 

be  had  to  that  document.  If  this  do  not  solve  the 
question,  the  presunnption,  at  all  events,  is  in  favor  of 
his  being  charged  as  vicar-general,  and  that,  conse- 
quently, no  appeal  lies  from  him  to  the  bishop.  Exactly 
the  same  principles  are  applied,  mutatis  mutandis,  when 
there  are  several  vicars-general.  In  that  case  the  criminal 
jurisdiction  is  often  conferred  on  one  of  them  only,  who 
in  some  places  bears  the  name  of  Official.^ 

17.  The  vicar-general,  as  he  is  not  the  Ordinary  him- 
self, and  is,  therefore,  not  presumed  to  have  authority  in 
all  criminal  causes,  must  in  the  exercise  of  his  criminal 
jurisdiction  prove  his  authority  to  the  interested  parties, 
provided  it  have  not  already  been  made  officially  known. 
His  powers  must  each  be  shown  from  his  written  man- 
date, to  explain  which  custom  may  even  of  itself  suffice. 
Yet  to  prevent  the  proceedings  from  being  subject  to 
abatement,  it  will  generally  be  better  to  have  recourse  to 
the  bishop,  that  he  may  himself  authentically  interpret 
the  commission. 

In  the  same  manner  we  must  answer  the  next  question, 
whether  the  vicar-general  can,  in  a  particular  case,  dele- 
gate or  perhaps  even  sub-delegate.  This  question  is,  as  a 
rule,  to  be  answered  affirmatively.  In  case  of  the  bishop 
being  absent,  the  vicar-general,  if  sick  or  otherwise 
prevented,  has  the  right  to  sub-delegate  another  for  the 
most  urgent  cases.  Such  sub-delegate  would  retain  his 
authority,  even  if  the  vicar-general  should  die,  until  the 
bishop  shall  have  further  provided.* 

'  Cfr.  the  interesting  article  s.  v.  Officialiid  ^Tpvtdi  Prompsault. 
*  S.  C.  Epp.,  12  Aug.  1833.     AJP.,  xni.  69,  899. 


SECTION  II. 

COMPETENCY  OF   THE  ECCLESIASTICAL  JUDICIARY. 


CHAPTER  I. 

PERSONAL,   REAL,   AND   APPELLATE   COMPETENCY. 

18.  All  criminal  and  disciplinary  causes  of  bishops' 
which  are  punishable  with  deposition  or  privation  of  the 
benefice,  the  Pope  himself  decides  'in  the  first  instance. 
If  an  inquiry  is  to  be  made  at  the  place  of  the  delict  or 
delinquent,  he  can  delegate  for  that  purpose  an  arch- 
bishop or  a  bishop  only,  and  that  by  instrument  signed 
under  his  own  hand;  minor  transgressions  of  bishops 
can  be  acted  upon  by  provincial  councils,  who  may  dele- 
gate others  for  the  purpose.' 

As  we  have  before  observed,  the  Pope  has  full  jurisdic^ 
tion  over  all  ecclesiastics  of  the  whole  Church.     There- 

'  On  the  subject  of  this  section  cfr.  Commentators.  1.  n.  tit.  2,  "  dc  foro 
,competenli."  Also  Bouix,  I.  p.242  ;  Craissnn,  n.  5653  ;  Smith,  n.  781  : 
Sanguiiieti,  n.  547.  We  use  the  term  competency  in  the  meaning  that  it 
has  in  Roman  or  French  law,  in  which,  however,  it  seems  to  be  seldom 
used  by  American  or  English  writers.  They  prefer  the  term  jurisdic- 
tion or  the  Latin  f»rum.  See  Bottz'ier,  h.  v.  Real  competency  is  some- 
times termed  jutisdiction  of  the  cause,  as  distinguished  from  /.  of  the 
person  and/  of  the  place.  The  same  threefold  distinction  is  observed  by 
canonists.  *'  Competentia  procedit  ex  ratione  tenitotii  .  .  .  vel  ex  natura 
causae  .  .  .  aut  ex  qualitate personarum."     (Santi,  h.  t  ,  n    3.) 

•  Cone.  Trid.,  S.  XXIV..  c.  5.  de  Ref.  See  the  report  of  the  trial  of  Jean 
Soanen,  Bp.  of  Senez,  by  the  Provincial  Council  of  Embrun,  France, 
1727  (jCoU.  Lac.  cit.,  vol.  I.  pp.  655-742). 


38  Judicial  Competency. 

fore  his  jurisdiction  over  the  clergy  who  are  subject  to 
bishops  is,  in  the  first  instance,  concurrent  with  that  of 
the  bishops.  He  should,  however,  according  to  the  de- 
cree of  the  Tridentine  Council,*  only  then  assume  juris- 
diction in  disciplinary  and  criminal  causes  in  the  first 
instance,  and  by  passing  over  the  episcopal  instance, 
when  the  proceeding  has  been  pending  in  the  episcopal 
court  already  for  two  years  without  judgment  having 
been  rendered,  or  when  the  parties  have  with  the  con- 
sent of  the  bishop  applied  to  him.  For  all  disciplinary 
and  criminal  causes,  even  the  greater  ones  of  his  secular 
clergy,  as  likewise  for  transgressions  of  regulars  which 
have  taken  place  outside  of  the  monastery  (provided  the 
superior  of  the  order  do  not  take  action  in  proper  time'), 
cognizance  in  the  first  instance  belongs  to  the  bishop,' 
that  is,  in  general  to  the  Ordinary,  or  to  whoever  is  by 
law  or  by  mandate  his  representative.  Such  are  usually 
the  Coadjutor  bishop,  the  vicar-general,  or  Official,  and 
sede  vacante  the  vicar-capitular.  From  their  sentence, 
however,  no  appeal  can  be  taken  to  the  bishop  (unless 
it  be  quite  certain  that  they  acted  merely  as  the  bishop's 
delegates,  a  rather  unusual  thing  in  such  matters),  be- 
cause their  court  and  his  are  but  one  instance.* 

19.  Appellate  judges  in  the  second  instance  °  are   the 

'  S.  XXIV.,  c.  20,  de  Ref.     Cfr.  Bened.  xiv.,  Ad  iHilitantis,  §  42. 

*  Cone.  Ttiii.,  S.  XXV.,  c.  14.  de  Regul.  et  Mon. 
»  Ibid..  S.  XIII.,  c.  4,  de  Ref. 

•*  From  a  decision  of  the  S.  C.  C,  20  Dec.  1873,  the  Acta  S.  S.,  Vll.  575, 
argue  Episcopum  cum  suo  consistorio  sive  curia  unum  idemque  tribunal 
consiituere.     On  the  vicar-capimlar  cfr.  Ferrari,  tit.  7,  2i. 

*  Although  the  Holy  See  has  an  unlimited  right  to  receive  appeals 
from  the  first  instance,  it  is  yet  a  maxim  of  Canon  law  also,  that  appeals 
should  not  be  made  per  saltum  (Cone.  Trid.,  S.  XXII,  c.  7,  de  Ref.),  i.e. 
passing  by  the  intermediate  appellate  court.  Still  where  this  rule  cannot 
be  easily  observed,  an  appeal  from  the  Ordinary  may  be  taken  immedi- 
ately to  the  Holy  See.  This  was  customary  in  the  Province  of  West- 
minster until  18S4,  and  is  still  left  free  to  tho  clergy  of  Ireland.     (See 


Personal  and  Appellate  Competency.  39 

Metropolitans.  In  respect  to  causes  which  the  metro- 
politan decided  in  the  first  instance  as  Ordinary  of  iiis 
diocese  other  provisions  must  be  made.'     In  Prussia  the 

PI.  Syn.  Maynooth,  1875,  n.  265.)  In  the  postulate  of  the  French  bish- 
ops at  the  Vatican  Council  they  say:  Appellationes  ad  S.  Stdem  omisso 
medio  secundae  instanlicu,  metropolitani  scilUet,  n«n  diberent  admitti. 
Similar  requests  had  been  made  long  before  at  the  Council  of  Trent. 
{Afarlin,  p.  155  f.)  In  the  United  States  an  appeal  to  the  metropolitan 
in  the  second  instance  was  first  made  obligatory  by  the  Provincial  Coun- 
cil of  St.  Louis,  1855,  whose  decree  was  sent  by  Rome's  request  to  the 
other  American  Provinces  as  a  norm  to  follow.  It  was  again  formally 
adopted  by  the  second  plenary  Council  of  Baltimore,  1866,  in  n.  77.  In 
the  same  Council  the  Apostolic  Delegate  was  requested  by  the  S.  C. 
Prop,  to  insert  as  one  of  the  rights  of  the  Archbishops  (which  the  fathers 
had  omitted  from  their  enumeration)  to  receive  appeals  from  the  sen- 
tences of  their  suffragans  (n.  81,  iv.).  The  same  is  again  implied  in  the 
Instruction,  art.  33,  41.     See  Rota,  n.  807. 

'  By  the  general  law  of  the  Church  an  appeal  from  the  metropolitan 
either  as  such  or  even  as  Ordinary  lies  immediately  to  the  Holv  See. 
Yet  that  his  own  subjects  might  have  the  same  privilege  as  his  suffraii^an 
clergy,  namely,  to  carry  an  appeal  to  two  higher  courts,  and  in  order  to 
expedite  matters  by  bringing  the  case  to  a  nearer  tribunal,  different 
ways  have  been  adopted  according  to  various  conditions.  Three  of  them 
deserve  special  mention.  First,  the  metropolitan  has  two  distinct  tri- 
bunals, one  the  diocesan  (of  the  first  instance),  the  other  the  metropoli- 
tan (of  the  second  instance).  To  the  latter  go  all  appeals  whether  from 
his  own  diocesan  or  from  the  suffragan  courts.  Such  an  Officiality 
nUtropolitaine  {auditorium  metropoliticum)  was  ordered  by  the  Provincial 
Councils  of  Rheims  (1849),  Albi  (1850),  and  seems  to  be  generally  estab- 
lished in  France  and  in  Prussia.  Another  way  is  to  make  the  senior 
suffragan  the  judge  of  the  second  instance  for  cases  from  the  metropoli- 
tan's own  diocese.  This,  we  think,  is  the  case  in  Bavaria,  and  has  been 
by  decree  of  the  S.  C.  Prop..  20  June  1884,  made  the  rule  for  the  diocese 
of  Westminster.  A  third  mode,  finally,  is  to  carry  the  appeal  from  the 
metropolitan  of  the  first  instance  outside  of  the  province  to  another, 
mostly  neighboring,  metropolitan.  This  happens  in  Austria  and  with 
us  in  the  United  States.  The  third  plenary  Council  of  Baltimore,  n.  316, 
has  expressly  ordered,  by  special  concession  of  the  Holy  See,  that  in  the 
present  case  an  appeal  shall  lie  ad  Afetropolitanum  viciniorem.  A  motion 
was  made  at  the  s.ime  Council,  if  we  are  rightly  informed,  to  decide  at 
qnce  which  one  should  be  considered  for  each  metropolitan  his  respec- 
fivply  nearest  appellate  court.     But  we  have  never  heard  of  the  decision. 


40  Judicial  Competency. 

metropolitans  of  Cologne,  Breslau,  and  Ermeland  have 
their  own  courts  of  the  second  instance,  Gnesen  and 
Posen  are  assigned  to  each  other  as  such.  In  Bavaria, 
Augsburg  is  delegated  in  this  respect  for  Munich- 
Freising,  and  Wiirzburg  for  Bamberg.  In  Austria, 
Prague  is  the  court  of  second  instance  for  Vienna  and 
Salzburg,  Olmutz  for  Prague,  and  Vienna  for  Olmutz.* 

For  disciplinary  and  criminal  causes  of  bishops,  which 
the  provincial  council  decided  in  the  first  instance,  Rome, 
of  course,  would  be  the  next  appellate  court. 

20.  Judge  in  the  third  and  last  instance  in  disciplinary 
and  criminal  causes  of  clerics  is  the  Pope,'  who  for  that 
purpose  avails  himself  either  of  his  Curia  at  Rome,  or  of 
delegated  judges  in  the  several  dioceses.  The  conditions 
for  the  delegation  of  the  latter  are  specially  regulated. 
The  Council  of  Trent,  namely,  ordained  ^  that  at  every 
provincial  and  diocesan  synod  at  least  four  qualified 
ecclesiastics  should  be  chosen,  and  their  names  presented 
to  the  Pope  {j'udices  synodales).*  Later  on,  Benedict  XIV., 
Quamvis pater na,  August  26,  1741,  §§  3-6,  ordered  further 
that  where  for  some  time  no  synod  could  be  convened,  the 
bishop,  after  having  consulted  the  chapter,  shall  choose 
and  present  to  the  Pope  such  qualified   clerics  {judices 

If  geographical  distance  were  to  decide,  Chicago,  e.g.,  would  be  appellate 
court  for  Cincinnati.  Milwaukee,  and  St.  Louis;  St.  Louis  would  be  such 
for  Santa  F6,  and  New  Orleans;  Philadelphia,  for  Baltimore  and  New 
York,  etc.     Boston,  New  Orleans,  and  Santa  Fe  would  be  free. 

*  Phillips.  %  179,  note  ii. 

*  In  some  countries  the  Holy  See  has  recently,  by  special  delegation, 
established  permanent  appellate  courts  of  the  third  instance.  Such  a  one 
is,  e.g.,  the  metropolitan  court  of  Prague  for  all  causes  being  carried 
there  from  the  second  instance  at  Olmutz  and  Lemberg.  Thus  in 
Bavaria,  Munich  and  Bamberg  are  for  each  other  courts  of  the  third  in- 
stance. 

»  S.  X.W.,  c.  10.  de  Ref.  (with  decisions  of  S.  C.  C.  ap.  Kichter  and 
Schulle,  p.  457). 

*  Cfr.  Bened.  XIV.,  de  Syn.  D.,  1.  iv.  c.  5;  Santi,  1.  i.  tit.  29,  n.  i4ff.      . 


Personal  and  Appellate  Competency.  41 

prosy nodalcs).  These  synodal  and  prosynodal  judges  do 
not  as  yet  by  their  election  and  presentation  obtain  any 
kind  of  jurisdiction,  but  they  are  for  each  particular  case 
delegated  by  the  Pope  himself,  and  are  then  Papal  dele- 
gates. 

Here,  however,  arises  a  difficulty.  In  the  first  instance 
the  bishop  himself,  possibly,  was  the  judge  ;  in  the  second 
instance  it  was  the  metropolitan  ;  but  for  the  third  in- 
stance inferior  clerics  are  delegated  by  the  Pope,  and  may, 
perhaps,  reverse  or  annul  the  episcopal  and  metropolitan 
sentence.  That  this  would  impair  the  judicial  authority 
of  the  bishop  is  evident.  In  view  of  this  the  Tridentine 
Council  had  in  the  beginning  prescribed  that  the  Pope 
should  delegate  an  archbishop,  or  at  least  a  neighboring 
bishop.'  But  as  this  was  for  the  most  part  not  practi- 
cable, the  Council  abandoned  it  by  the  aforementioned 
enactment  concerning  synodal  judges.  Yet,  where  pos- 
sible, only  such  clerics  should  be  elected  who  hold  a 
dignity,  a  personate,  or  a  canonry.* 

21.  This  mode,  however,  is  not   much   in   practice  at 

'  S.  xui.,  c.  2,  de  Ref. 

*  c.  ir,  de  Rescript,  in  6".  i.  3 — As  the  English  equivalent  for  the 
latin  Personattis  we  retain  the  noun  Personate,  used  by  Waterworth  and 
Walcolt.  The  term  persona  (person),  used  in  Civil  law,  would  rather  in- 
dicate the  holder  of  a  personate  than  that  itself.  To  understand  the  mean- 
ing of  the  term  one  must  remember  that  at  least  since  the  twelfth  cen- 
tury the  different  ranks  among  the  diocesan  clergy,  especially  that  of  the 
cathedral  church,  used  to  be  characterized  respectively  as  digniias.  fer- 
sontitus,  &nA  officium.  Dignity  meant  a  benefice  to  whiih  jurisdiction 
and  pre-eminence  of  honor  were  annexed — e.g.  the  vicar-general  ;  per- 
sonate, a  benefice  with  which  honorary  preeminence  but  no  jurisdiction 
was  joined — e.g.  a  canon;  office  finally,  a  benefice  without  jurisdic- 
tion and  any  special  honor— e  g.  the  sacristan  of  the  cathedral.  In 
modern  times,  however,  what  slvc  perse  mere  personates  have  been  made 
dignities  by  papal  privilege.  Such  is  the  case  with  the  provost  (praeposittis) 
of  cathedral  chapters  in  England  and,  we  suppose,  in  Canada.  Cfr. 
Irish  Eccl.  Record,  III.  Series,  vni.  399. 


42  Judicial  Competency. 

present,  but  when  an  appeal  is  carried  to  the  Pope,  the 
Roman  Curial  authorities  decide  the  cause,  and  even  they 
do  not  delegate  special  judges  of  inquiry,  if  the  facts  in 
the  case  are  not  yet  sufficiently  clear  ;  but  they  will  send 
to  the  bishop  very  definite  instructions  how  to  conduct 
a  further  inquiry.* 

The  real  competency  (jurisdiction  of  the  cause)  of  the 
various  papal  courts  is  not  regulated  according  to  precise 
and  uniform  principles,  but  rests  throughout  on  an  his- 
torical basis.  We  cannot,  however,  give  here  the  history 
of  their  competency,  which  is  connected  with  the  history 
of  their  institution.*  We  are  content  to  enumerate  some 
of  the  disciplinary  and  criminal  causes,  to  decide  which 
the  several  Congregations  are  competent.  In  case  of 
doubt  they  themselves  must  of  course  decide  as  to  their 
competency.  A  wrong  address  in  an  appeal  would  not 
indeed  be  prejudicial,  as  the  Congregation  addressed  will 
send  the  cause  to  the  competent  one. 

To  the  competency  of  the  Congregatio  Inquisitionis  (S. 
C.  Inq.  or  S.  Off.)  belong:  heresy,  polygamy,  solicitation 
in  the  confessional,  keeping  of  prohibited  books,  offend- 
ing against  abstinence,  celebration  of  Mass  or  hearing 
confessions  by  one  not  a  priest,  public  veneration  of  one 
not  canonized  or  not  beatified,  astrology,  and  divination. 
This  Congregation  has,  however,  a  peculiar  procedure, 
adapted  to  the  nature  of  the  matters  belonging  to  its 
competency. 

To  the  Congregatio  Episcoportim  et  Regularium  (S.  C. 
Epp.)are  assigned  all  other  disciplinary  and  criminal  mat- 
ters of  clerics ;  and  in  particular  also,  by  the  bull  Post 
diuturnas  of  Pius  VII.,  30  Oct.  1800,  all  complaints  or  re- 

'  S.  C.  Epp.,  24  Nov.  1814.    AJP.,  xn.  865.  772;  XX.  87. 

'Consult  StremUr,  1.  c,  p.  s'"""',  "  Des  Congregations  Romaines;" 
Maine,  La  Cour  Romaine;  Bouix,  De  Curia  Romana ;  Bangen,  Die 
K<Smischc  Curie;  Dublin  /fevie-o.  O.  S.,  xxvi.  p.  338 


Local  Competency,  43 

courses  in  criminal  proceedings,  so  far  as  they  do  not  per- 
chance belong  to  the  next  Congregation.' 

The  Congregatio  Concilii{S.  C.  C.)  is  competent  for  those 
disciplinary  and  criminal  matters  which  are  regulated  by 
the  Council  of  Trent.' 

The  Congregatio  Immunitatis  (S.  C.  Imm.)  has  to  decide 
between  ecclesiastical  and  civil  jurisdictions.* 


CHAPTER    11. 
LOCAL  COMPETENCY. 


22.  No  question  can  be  raised  as  to  the  local  compe- 
tency of  the  Holy  See.  It  alone  embraces  the  whole 
world.  There  are,  however,  many  jurisdictions  of  the 
second  instance  and  a  great  many  of  the  first.  The  ques- 
tion therefore  is,  which  one  of  these  is  individually  com- 
petent for  the  particular  case  to  the  exclusion  of  all  other 
similar  authorities? 

This  individual  competency  of  a  judicial  authority, 
which  forms  the  forum,  the  tribunal  in  the  proper  sense, 
is  now  usually  determined  geographically.  By  the  forum 
of  the  accused  or  defendant  we  understand  his  duty  to 
answer  to  the  charge  before  a  stated  court,  and  the  right 
not  to  answer  before  any  other. 

'  Decisions  of  this  famous  and  important  Congregation  were  collected 
by  Bizzarri,  and  over  a  thousand  d/crets  in^dits  are  published  in  the 
AJP.,  s6rie  xi.  flf.,  to  which  Droste  so  often  refers. 

*  There  are  two  famous  collections  of  the  decisions  given  by  this  Con- 
gregation—a summary  one,  very  handy  for  quick  reference,  by  Zamboni 
(new  edition,  i36o,  4  vols.);  the  other,  full  and  extensive,  by  Fallotini, 
still  in  course  of  publication  (Rome). 

'  The  famous  collection  by  Ricci  of  the  decisions  of  this  Congregation 
was  republished  with  additions  and  supplementary  documents  by  Canoa 
De  MontauU  (see  list  of  authors). 


44  Judicial  Competency. 

The  territory  which  the  members  of  the  Catholic 
Church  and  in  particular  their  clergy  inhabit  is  divided 
in  regard  to  the  administrative  as  well  as  jurisdictional 
power  into  many  districts,  defined  by  local  limits,  i.e. 
dioceses,  at  the  head  of  which  are  the  Ordinaries,  each  of 
whom  exercises  jurisdiction  over  his  whole  district. 
Hence  it  follows  that  the  Ordinary  is  the  judge  over  all 
clerics  who  live  in  his  district,  if  they  are  not  exempt 
from  his  jurisdiction  by  law  or  privilege.  By  reason  of 
their  domicile  they  are  subject  to  him ;  their  forum 
lies  with  him,  particularly  in  disciplinary  and  criminal 
matters.  How  the  dependence  of  the  cleric  upon  his 
bishop  goes  on  increasing  from  his  birth  to  his  admission 
into  a  benefice  is  beautifully  expressed  by  the  Acta  S.  S., 
VI.  587,  in  reference  to  a  decision  o^  the  S.  C.  C,  12  Sept. 
1871.     They  say : 

"  I.  Fundamentum  legitimi  exercitii  episcopalis  auctoritatis  in  certum 
populum  certumque  Clerum  esse  ipsum  territorium  dioecesanum,  cui 
Episcopus  canonice  praesideat.  II.  Quare  omnes,  qui  cum  territorio 
sint  aliqua  stabili  ratione  coUigati,  sive  ralione  originis  et  domicilii,  sive 
ratione  tanlum  domicilii,  obnoxios  regulariter  esse  eidem  episcopali  auc- 
toritati.  III.  Arcedente  sacra  Ordinatione  aliud  vinculum  cum  episco- 
pali auctoritate  obstringi.  ita  ut  non  solum  ratione  terrilorii  sint  clerici 
eidem  subiecti.  sed  etiam  ratione  s.  Ordinationis,  qua  membra  evadunt 
dioecesanae  hierarchiae.  IV.  Fortius  eiusmodi  secundum  vinculum 
esse,  si  Clericus  cum  peculiari  ecclesiastic©  officio  seu  beneficio  in  bonum 
dioecesis  erecto,  colligetur." 

The  Instructio,  art.  I,  also  alludes  to  ihe  forum  domicilii 
when  it  says  that  to  the  bishop  belongs  the  discipline  and 
correction  of  clerics  who  are  subject  to  him  {a  se  depen- 
dcntium).  Even  from  this  it  appears  sufficiently  that 
now  at  least  in  disciplinary  and  criminal  cases  the  f 
domicilii  must  be  admitted.  It  has  been  maintained 
that  formerly  it  had  no  application ;  that  for  criminal 
matters  Canon  law  knows  only  the/,  delicti  commissi.  This 
i.s  false.     Canonists  agree  in  teaching  that  jurisdiction  of 


Local  Competency.  45 

the  domicile  is  concurrent  with  the  other  kinds  of  general 
forum.  And  the  Acta  S.  S.,  II,  141,  draw  the  following 
conclusion  from  a  decision  S.  C.  C,  28  Jan.  1865  :  Quam- 
vis  rcgulariter  qtiis  forum  sortiri dicatur,  Juxta  caput  Licet 
de  for.,  comp.y  ratione  delicti,  contractus,  domicilii,  rei  sitae; 
tamen  domicilii  forum  did  et  esse  naturalem  et  ordinarium, 
ct  cum  ceteris  concnrrentem.  Hence  we  hold  that  the  f. 
domicilii  concurs  electively  with  the  other  jurisdictions  in 
ecclesiastical  disciplinary  as  well  as  criminal  causes.* 

To  establish  a  domicile,  we  briefly  observe,  two  constitu- 
ents are  required :  the  intention  to  make  a  certain  place 
the  centre  of  one's  activity,  and  the  actual  residence  there. 
Numberless  times  have  the  Roman  Congregations  de- 
clared (to  use  the  words  of  the  Acta  S.  S ,  IX.  414): 
Locum  domicilii  alicujus  esse  ilium  in  quo  facto  et  animo 
manendi  moratur.  A  cleric  has  his  domicile  usually  where 
he  has  a  benefice  entailing  his  obligation  to  reside  there. 
The/",  domicilii  does  not,  however,  suffice  for  disciplinary 
and  criminal  cases  ;  circumstances  may  arise  which  de- 
mand another  jurisdiction.  A  mere  stay,  short  or  long, 
in  a  diocese  does  not  effect  a  forum  there,  except  in 
Rome.  This  latter  and,  assuredly,  exceptional  way  of 
acquiring  a  forum  by  mere  presence  is  an  old  remnant 
from  that  time  when  the  Papal  jurisdiction,  even  in  the 
first  instance,  did  very  commonly  concur  with  that  of  the 
bishops  in  the  whole  Church."  But  if  official  business  or 
his  own  affairs  with  the  Curia  brought  the  cleric  to  Rome, 
he  has  \\\e  Jus  domum  revocandi,  the  right  of  demanding 
to  be  dismissed  to  the  jurisdiction  of  his  domicile,  there  to 
receive  his  sentence." 

^  Botiix.  w.  p.  300.  explains  the  following  thesis:  A  foro  delicti  non 
toUHur  forum  domicilii,  scd  amho  cumulative  coexist unt 

*  The  same  special  privilege  for  Rome  is  found  in  the  Roman  law 
under  the  Emperors. 

*c.  ao.  X..  h.  t..  n.  a. 


46  Judicial  Competency. 

23.  Besides  the  f.  domicilii,  the  place  where  the  act 
was  committed  establishes  another  forum  for  the  delin- 
quent, the/,  delicti  commissi.  According  to  this  the  bishop 
can  bring  before  his  own  court  the  cleric  who  has  com- 
mitted an  offence  in  his  diocese,  although  he  belong  to 
and  reside  in  another  diocese.  The  only  difficulty  here 
may  arise  by  the  question,  which  is  in  face  of  the  law 
the  place  of  the  act  ?  which,  e.g.  in  an  offence  through 
the  press  ? '  According  to  the  correct  view  the  f.  delicti 
is  in  the  place  where  the  offender  acted  and  not  where 
the  effect  appeared.'' 

The/",  domicilii 3.v\d  the/",  delicti  will  often  be  the  same, 
though  not  always.  In  the  latter  case  they  are  concur- 
rent, i.e.,  either  the  bishop  in  whose  diocese  the  oft'ender 
has  his  domicile  can  try  the  case,  or  he  in  whose  diocese 
the  act  was  committed.  But  as  one  can  be  tried  only 
once  for  the  same  offence,  prevention^  must  in  his  case 
determine  the  competent  forum.  Sometimes  the  judge  by 
prevention  will  try  the  case  and  give  sentence,  but  yet, 
either  by  the  law  or  from  the  nature  of  the  case  or  by 
agreement,  will  leave  the  execution  to  the  concurrent 
jurisdiction.  A  f.  deprekensionis,  the  jurisdiction  of  the 
place  where  the  criminal  is  arrested,  the  Church  does  not 
need.*  It  would  moreover  be  useless  at  present,  since  the 
Church  has  no  longer  tx  familia  armata. 

'  The  author  living  at  a  different  place  from  where  his  book  is  pub- 
lished. 

'  Cfr.  Grandclaude,  ll.  p.  25. 

^  Forum  praevaitionis  is  the  right,  obtained  by  prevention,  of  a  judge 
to  try  a  cause  over  which  he  has  concurrent  jurisdiction  with  another 
judge.  The  judge  who  first  takes  hold  of  the  case,  which  is  done  by  the 
citation  (summons),  is  said  to  prevent  (get  the  start  of,  or  stop)  the  other. 
Again,  as  soon  as  the  offender  is  summoned  for  the  trial,  he  is  said  to  be 
praeventus,  i.e.  hindered  ai.d  stopped  from  evading  the  summoning  court. 
Cfr.  Schmalz^ruber,  h.t  .  n.  136. 

^  There  are  not  a  few  who  hold  that  Canon  law  does  not  recognize 
such  a  forum.     Justinian  abolished  it  from  the  Roman  law. 


Local  Competency.  47 

A  so-called  forum  prorogatum^  in  which  the  parties 
may  by  agreement  choose  any  judge  competent  in  the 
matter,  is  in  its  nature  excluded  from  the  criminal  pro- 
cedure. If,  with  the  consent  of  the  bishop  and  the  parties, 
the  trial  of  a  criminal  case  is  committed  to  a  judge  who 
has  per  se  no  jurisdiction  over  the  cause,  such  a  forum  is 
not  to  be  called  prorogated,  but  simply  delegated. 

The  court  itself  must  decide  as  to  its  personal,  real,  and 
local  competency.  In  case  of  conflict  between  several 
courts,  the  decision  rests  with  the  common  next  higher 
jurisdiction.  But  where  judicial  proceedings  have  once 
rightfully  commenced,  the  forum  there  acquired  re- 
mains.' 

'  Sckmalzgruber,  h.t.,  n.  143. — In  the  Scotch  law  it  is  called  Prorogated 
Jurisdiction.  It  is  not  the  same  as  Prorogation  in  our  Common  law,  but 
in  part  corresponds  to  its  Change  of  venue, 

*  c  19,  X.  h.  t. 


SECTION  III. 

ORGANIZATION  OF  ECCLESIASTICAL  CRIMINAL  COURTS. 


CHAPTER   I. 

PERSONNEL   OF   THE   COURT. 

Art.  I.     The  Jtidge. 

24.  The  chief  official  in  ecclesiastical  disciplinary  and 
criminal  courts  is  the  judge.'  The  qualifications  neces- 
sarily required  for  the  judicial  office  are  determined 
partly  by  the  nature  of  such  office,  partly  by  positive 
law.'  The  insane  as  well  as  minors  are  unfit  for  the 
judicial  office,  because  they  lack  the  necessary  mental 
faculties.  The  same  applies  to  the  deaf  and  dumb,  and 
the  illiterate.  A  person  under  the  age  of  eighteen  cannot 
be  appointed  judge  except  by  the  Pope ;  if  aged  from 
eighteen  to  twenty,  he  could  be  appointed  only  with  the 

'  The  judge,  whether  ordinary  or  delegate,  and  his  office,  dutie«,  and 
qmlifications  are  the  subject-matter  of  titles  23-33  i"  the  first  book  of 
the  Decretals.  Commentators  must  be  consulted  under  those  titles.  Of 
other  writers,  cfr.  Bouix,  vol.  i.  p.  120  flf. ;  Craisson,  n.  5540  flf. ;  Smith, 
n.  710  flf.  On  the  moral  ol)ligaiions  of  all  the  higher  and  lower  officers 
of  the  court  consult  the  treatise  de  statibus particularibus  by  St.  Liguori, 
1.  V,  n.  192  ff.;  Scavini,  vol.  i,  n.  518  ff. ;  Konings,  n.  1052  ff.  For  an 
interesting  historico-canonical  treatise  on  Ecclesiastical  Courts  and  their 
proceedings,  we  refer  to  Van  Espen,  p.  iii. 

'  Sanguineti,  n  542,  tersely  states  these  qualities  by  saying  that  a 
judge  must  be  idoneous  (being  fit  for  the  office),  legitimate  (having  got 
jurisdiction  by  lawful  way),  and  competent  (having  jurisdiction  in  the  very 
cause  he  tries). 


Personnel  of  the  Court.  49 

consent  of  the  parties.'  Further,  a  person  suspended, 
interdicted,  or  excommunicated  shall  not  be  judge.  /». 
famia  juris  ox  facti  also  disqualify  for  the  judicial  oflfice.' 

According  to  the  rules  of  Canon  law,  the  judge  in 
disciplinary  and  criminal  causes  of  ecclesiastics  must  be 
himself  a  cleric'  Canonists  maintained  this  to  be  required 
by  divine  law ;  but  theologians  denied  it.*  The  latter 
are  undoubtedly  right,  as  the  Pope  not  only  can,  but  did 
in  fact,  dispense'  from  such  rule. 

But  a  cleric  who  married,  although  he  had  previously 
received  only  minor  orders,  is  no  longer  qualified  ;*  nor 
can  he  again  become  so  even  by  episcopal  delegation.^ 
As  is  evident,  the  bishop  can  much  less  make  use  of  the 
civil  courts  against  his  clerics." 

The  above-mentioned  defects  render  a  judge  in  all 
cases  incapable  of  acting  in  criminal  causes  against  eccle- 
siastics. There  are  still  others  which  render  him  incapable 
only  in  particular  cases  or  in  certain  circumstances.  Most 
of  these  cases  are  covered  by  the  axiom  that  no  person 
shall  be  judge  in  his  own  cause.  Therefore  a  judge  is 
excluded  if  he  or  his  nearest  relations  or  his  household 
are  either  plaintiffs  or  defendants ;  for  the  causes  of  his 
relations  or  of  his  household  are  considered  as  personal 
causes  of  the  judge.* 
'  c.  14.  X  ,  I.  29. 

*  The  verse  embodying  the  quality  of  a  judge  delegate  may  be,  with  ihe 
exception  of  the  seventh,  properly  applied  to  the  ordinary  judge.     Thus: 

Liber,  mas,  gnarus,  cut  sit  mens,  integra  fama, 

Aetas.  qui  subsit:  contmittitur  huic  bene  causa. 

'  c.  2,  X.  n.  i;  c.  18,  X.  ii.  2.     See  infra,  n.  29,  and  note,  i,  p.  53. 

*  AJP.,  XI.  412. 

»  7  Dec.  1855.     AJP.,  XX.  162. 

*  S.  C.  Imm..  1775.  and  24  Sept.  1781.     AJP..  xin.  45.  49,  50. 

*  S.  C.  Imm..  30  June  1832.     AJP.,  xur.  45,  51. 
"  S.  C.  Epp..  Dec.  1737.     AJP.,  xi.  822.  338. 

*  The  circumsUnce  of  near  relationship  or  familiarity  does  not  exactly 
render  the  judge  unfit  {inhabiUm),  but  rather  suspect.  Cfr.  Santi,  1.  i,  tit. 
29,  n.  40.     See,  infra,  the  article  on  Recusation,  n.  77  flf. 


50  Orga7iization  of  the  Courts. 

25.  A  criminal  sentence  which  is  brought  about  by  the 
co-operation  of  an  incompetent  judge  is  liable  to  be 
annulled ;  and  the  parties  may  have  it  reversed  by  the 
higher  jurisdiction  on  the  plea  of  nullity.  A  judge  should 
ex  officio  refrain  from  exercising  the  judicial  office  in  a 
cause  for  which  he  is  naturally  or  legally  disqualified.  If 
he  do  not,  the  parties  have  the  right,  which  they  can 
assert  at  any  stage  of  the  proceeding,  to  demand  his  ex- 
clusion by  a  declinatory  exception  de  jiidicc  inhabili. 

26.  Every  person  who  appears  as  judge  in  a  criminal 
proceeding  against  ecclesiastics  must  prove  that  he 
possesses  the  requisite  natural  and  legal  qualifications  for 
the  office.  This  he  does  either  by  showing  that  he  holds 
such  an  office  or  position,  etc.,  to  which  ordinary  juris- 
diction over  the  defendant  or  the  present  cause  is  annexed, 
or  by  exhibiting  his  v/ritten  delegation.  That  he  will, 
moreover,  be  a  just  and  impartial  judge  is  presumed  on 
the  strength  of  the  testimony  implied  in  his  appointment 
to  the  respective  office,  or  in  his  commission.  Besides, 
there  is  his  oath  of  office.  An  unrighteous  judge  who 
warps  the  law  makes  himself  criiliinally  responsible ;  but 
against  a  violation  of  the  law  through  his  ignorance  there 
is  a  remedy  in  the  appeal  or  writ  of  error. 

27.  The  decision,  i.e.  the  passing  of  sentence  in  discip- 
linary and  criminal  proceedings  against  ecclesiastics,  as 
the  very  pith  of  jurisdiction,  appertains  in  the  first  in- 
stance to  the  bishop.  The  bishop  may,  if  he  so  chooses, 
always  pronounce  judgment  himself;  but  he  may  also 
either  expressly  or,  as  far  as  allowed  by  law,  even  tacitly 
intrust  it  to  his  vicar-general;'  or  he  may  appoint  a  special 
judge  with  such  full  power  for  all  criminal  cases  (official); 
or  he  may  create  a  more  or  less  numerous  college  of 
judges  as  a  court  of  final  sentence.  Again,  this  right  of 
passing   sentence  the  Ordinary  may  commit   to  others 

'  Instr.  Cum  Magnop.,  art.  34. 


Person7iel  of  the  Cojirt.  51 

without  any  restrictions  at  all,  or  he  may  qualify  it  in 
such  a  manner  that  the  sentence,  together  with  the  rea- 
sons for  it,  as  also  the  whole  proceedings,  shall  be  first 
submitted  to  him  before  being  given  in  court,  to  the  ef- 
fect that  a  sentence  not  previously  submitted  to  him  and 
by  him  confirmed  shall  be  void.  In  the  last  case  those 
judges  appear  only  as  assistants,  assessors,  councillors  of 
the  episcopal  court,  with  only  a  consultative  voice;' 
whereas  in  the  former  they  are  judges  proper  with  decisive 
vote.  Again,  in  a  college  of  judges  (associate  court)  the 
decisive  vote  may  belong  to  the  presiding  officer  (the  chief 
justice)  alone,  the  vicar-general,  official,  or  whatever  he  be 
called,  while  the  rest  act  only  as  his  advisers ;  or,  on  the 
contrary,  the  presiding  judge  has  a  casting  vote  in  case 
of  a  tie  only,  whilst  his  associates  alone  have  the  right 
of  decision. 

In  some  courts,  for  instance  at  Prague,  as  many  priests 
as  there  are  assessors  in  the  court  are  summoned  by  the 
bishop  for  the  final  proceedings,  and,  although  they  are 
i\o\.  j'urtscojisulti,  obtain  decisive  vote.  These  priests  are 
chosen  by  him  from  a  certain  number  previously  appointed 
from  among  the  diocesan  clergy.  They  are  a  kind  of  ec- 
clesiastical jury.  Besides  these,  others  learned  in  Canon 
law  may  by  the  bishop  be  called  to  the  proceedings,  but 
only  with  a  consultative  voice.  The  Holy  See  even  per- 
mitted the  Bishop  of  Bertinoro,  on  account  of  very  par- 
ticular circumstances,  to  organize  his  criminal  court  with 
the  vicar-general,  two  of  the  most  learned  clergymen  from 
his  own  and  the  neighboring  dioceses,  and  two  lay  lawyers 

'  Such,  indeed,  is  the  case  with  the  Commissio  Investigalionis  intro- 
duced in  our  American  ecclesiastical  law  by  the  Imtr  S.  C.  de  Prop.  F., 
20  July  1878.  These  commissioners  are  called  consilium  judiciale,  con. 
siltarii;  they  help  the  bishop  tamjuam  asscssores;  their  vote  is  semper  con- 
sultivum,  while  the  final  sentence  is  reserved  exclusively  (unice)  to  the 
bishop.  See  the  Instruction  infra  in  Appendix;  the  same  with  the  later 
explanations  in  Appendice  C.  PI.  B.  III.,  pp.  292  ff.     Cfr.  Smith,  n.  907 


52  Organization  of  the  Courts. 

{deux  jurisconsult es  laiqucs) ;  these  laymen  were  to  have 
a  consultative  vote ;  a  decisive  vote  only  in  case  that  the 
two  clerical  assessors  should  differ  in  their  opinion  from 
that  of  the  vicar-general.' 

Art.  II.   The  Auditor  or  Judge  of  Inquiry? 

28.  Trial  and  sentence  constitute  the  regular  business 
of  a  criminal  court.     By  trial  or  inquiry,  however,  we  are 

1  S.  C.  Imm.,  12  Dec.  1832.  AJP.,  xiii.  52,  125. — We  have  kept  this 
paragraph  in  the  present  edition,  not  because  we  think  that  the  norms 
and  customs  therein  stated  should  all  be  introduced  in  America,  but  only 
for  the  historical  and  legal  consideration  they  deserve.  Nor  are  we  pre- 
pared to  assert  positively  that  our  bishops  may  choose  assessors  or  coun- 
cillors to  advise  them  in  a  trial  coming  before  their  court,  as  the  instruc- 
tion Cum  Magnop.  is  absolutely  silent  on  the  point.  Still  we  can  see  no 
other  reason  why  they  could  or  should  not  do  so.  It  would  rather  seem 
to  be  in  keeping  with  the  spirit  of  the  Instructio,  1878.  In  fact,  all  the 
episcopal  courts  in  Italy,  Austria,  and  Germany  have  their  assessors  and 
councillors,  generally  to  the  number  of  four,  following  the  example  of 
the  Roman  States.  Cfr.  the  circulars  of  the  Papal  Secretary  of  State, 
1831,  1S32  (ap.  De  Montault,  1.  c),  and  that  of  the  S.  C.  Epp.,  i  Aug. 
185 1  (ap.  Acta  S.  S.,  xv.  547). 

As  to  the  question  how  far  the  Church  allows  laymen  to  take  part  in 
canonical  criminal  procedure  against  clerics,  the  circular  sent  by  the  S.  C. 
Imm.  to  the  Ordinaries  of  the  Pontifical  States,  3  Oct.  1832,  begins 
with  these  very  words:  "It  is  a  principle  established  by  law  and  con- 
stantly applied  in  practice  that  neither  laymen  nor  married  clerics  can  act 
as  judges  in  criminal  cases  of  clerics,  nor  can  they  exercise  over  them 
any  jurisdictional  act  whatever,  even  if  that  jurisdiction  had  been  dele- 
gated to  them  by  a  competent  judge.  The  reason  is  that  such  delegation 
must  fall  on  a  subject  capable  of  ecclesiastical  jurisdiction;  but  of  that 
laymen  as  well  as  married  clerics  are  incapable,  except  in  case  of  a 
strictly  formal  indult  by  the  Apostolic  See."  In  a  letter  to  the  Archbp. 
of  Bologna,  4  Aug.  1832,  the  same  S.  Congr.  says  that  in  this  matter 
"  custom,  however  old  we  suppose  it  to  be,  were  it  even  immemorial,  can 
never  become  lawful  and  derogate  canonical  rules."  Many  like  decisions, 
see  apud  De  Montault,  pp.  430  ff.,  467  ff . ;  the  above  circular  ap.  Acta 
S.  S.,  XV.  540. 

*  We  retain  the  term  auditor  {''  audire  partes")  in  the  meaning  which  it 
has  in  Canon  law,  and  which  is  quite  different  from  that  in  Common  law. 
An  office  very  similar  to  that  of  the  auditor  in  the  ecclesiastical  court  is 


Personnel  of  tke  Court.  53 

not  to  understand  only  a  logical  inquiry,  i.e.  a  scrutiny 
and  sifting  of  the  evidence  produced,  but  moreover  in 
most  cases  an  inquiry  or  search  to  collect  evidence  in  order 
to  find  the  true  state  of  the  case  and  thus  arrive  at  a  sen 
tence.  To  understand  this  rightly  one  must  keep  in  view 
the  difference  between  accusatorial  and  inquisitorial  pro- 
cedure. In  a  proceeding  by  way  of  accusation  the  judge 
of  inquiry,  if  indeed  we  can  here  speak  of  such  a  one,  and 
the  judge  who  gives  sentence  are  one  and  the  same.  In  a 
proceeding  by  way  of  inquisition  we  can  not  only  logically 
distinguish  between  the  one  and  the  other,  but  in  fact 
those  two  judicial  acts,  the  inquiry  and  the  sentence, 
often  do  belong  to  different  officials. 

The  bishop  or  the  vicar-general,  if  he  be  the  bishop's 
official,  may  either  personally  conduct  the  investigation^ 
or  he  may  commit  it  to  some  upright  and  capable  cleric, 
who  thus  becomes  the  auditor  of  the  case  and  invested 
with  all  the  rights  and  powers  necessary  to  inquire  into 
the  whole  issue.    It  is,  however,  advisable  that  in  more  dif- 

that  of  the  referee  {referendarius)  in  some  civil  courts.  The  auditor's 
duties  are  perhaps  more  clearly  indicated  by  the  phrase  "Judge  of  In- 
quiry," which  corresponds  to  the  French  "  Juge  d'Instruction"  (5/r^w/(fr, 
p.  159),  the  Italian  "  Giudice  Istrutiore,"  and  the  German  "  Untersuch 
ungsrichier."  Rotn,  n.  614,  calls  him  "judex  inquirens."  and  "judex 
instructor"  (cfr.  Instr.,  art.  11,  "  processus  instruitur;"  art. .29,  "actorum 
instructor").  Why  these  auditors,  although  not  appointed  to  decide  the 
cases,  but  only  to  examine  and  report,  were  yet  from  olden  times  called 
"judges,"  is  very  interestingly  told  in  the  Irish  Eccl.  Record,  iii.  p.  356 
ff.,  iv.  p.  379 ff. — It  may  be  well  to  call  attention  at  once  that  the  Instruc- 
tio  speaks  of  two  distinct  inquiries.  The  first  is  the  sttmmaria  facti  cog- 
nitio  (art.  5),  also  called  inquisitio  pro  notiiia  curiae,  and  is  extrajudicial. 
See  below,  n.  87.  99.  The  other  is  a  judicial  inquiry,  being  the  beginning 
of  the  strictly  judicial  procedure.  It  is  called  processus  informativus  or 
also  inquisitio  pro  in/ormando  judice  ov  s\mp\\  processus,  &rX.  10  ff.  Sec 
below,  n.  loo.  Bouix,  ii.  p.  153,  calls  the  first  informalio  de  fama,  the 
other  inf.  de probatione.  The  second  inquiry  is  conducted  by  the  auditor. 
To  it  refer  the  arts  10-29  Instr.,  the  last  four  referring  also  to  the  plead 
ingor  ihc  contestatio  delicti.     Cfr.  C.  PI.  B.  III.,  n.  308. 


54  Organization  of  the  Courts. 

ficult  and  important  cases  the  bishop  or  vicar-general 
should  personally  conduct  the  inquiry. 

The  Instruction,  art.  \2,  says  :  '^ Processus  confectio  com- 
mitii potest  alicui  probo  atque  idoneo  Ecclesiastico  adstante 
Actuario."  This  does  not  only  mean  that  the  bishop  may, 
ad  hoc,  appoint  an  auditor,  but  seems  moreover  to  suggest 
the  idea  how  wise  it  would  be  to  charge  different  judges 
with  the  inquiry  and  with  the  decision.  We  find  the 
same  thought  in  the  regulations  for  ecclesiastical  criminal 
courts  in  the  Papal  States,  5  Nov.  183 1,  according  to 
which  the  vicar-general  himself,  although  he  did  person- 
ally conduct  the  inquiry,  may  afterwards  presideover  his 
associate  judges;  but  another  judge  could  not  preside  it 
he  had  been  auditor  in  the  case.* 

The  auditor's  duty  is  to  collect  all  possible  evidence 
bearing  on  the  case,  not  only  that  which  may  convict  the 
accused,  but  also  that  by  which  he  may  be  exonerated 
from'the  charge  (art.  1 1).  He  should  be  especially  anxious 
to  obtain  evidence  of  the  latter  kind  when  it  is  of  such  a 
nature  that  if  not  procured  at  once  it  may  become  un- 
available by  delay." 

At  the  investigation  the  auditormay  proceed  swninarily, 
that  is,  he  need  observe  only  the  essential  rules  of  justice 
so  that  guilt  or  innocence  be  clearly  proved.  It  is,  how- 
ever, impossible  to  give  definite  and  minute  rules  for  the 
mode  of  proceeding  applicable  in  all  cases.  The  auditor 
will  materially  depend  on  the  actual  circumstances  of  the 
case.  Where  positive  rules  are  wanting,  counsel  and  com- 
mon-sense must  be  the  auditor's  guides. 

'  S.  C.  Epp.,  June  18.  1855.     AJP.,  xiii.  52,  126;  xx.  163. 

'  What  the  C.  PI.  B.  III.  says  of  the  auditor  in  matrimonial  cases,  n. 
305.  n.,  applies  to  him  also  in  criminal  proceedings:  "■'  Audi  tor  is  seu 
modtratoris  est  tribunal cotivocare,  partes  et  testes  citare,  ordinare  investiga- 
tiones,  viros  peritos  ad  eas  inslituendas  deputare,  cdere  decreta  pro  recta  ac- 
torum  compilatione;  una  vcrbo,  omnia  praestare  tarn  in  disquisitione  praevia 
quant  in processu probatorio,  qua judicis propria  sunt." 


Personnel  of  the  Court.  «  55 

The  auditor  must  have  the  assistance  of  a  secretary  or 
clerk  to  write  the  minutes  (art.  12).  Both  must  take  the 
oath  of  office.' 

The  auditor  is,  from  the  nature  of  his  office,  much  ex- 
posed to  the  danger  of  becoming  prejudiced.  Consider 
his  position  :  unprejudiced  he  enters  upon  the  inquiry  ; 
convincing  proofs  of  the  guilt  or  innocence  of  the  ac- 
cused do  not  immediately  appear  ;  some  indications,  how- 
ever, do.  Quite  unconsciously  he  forms  an  opinion  be- 
forehand as  to  the  guilt  or  innocence  of  the  accused.  It 
is  a  prejudice.  He  examines  further ;  the  preconceived 
opinion  may  change,  but  it  may  also  fix  itself  more  firmly 
on  his  mind,  and  often  is  very  strongly  settled  there  even 
before  the  inquiry  is  closed.  In  such  a  case  there  is  no 
other  course  left  than  to  strictly  follow  the  legal  rules  of 
evidence.  It  is  only  thus  that  any  prejudice  may  be  set 
aside  and  the  inquiry  be  conducted  impartially.'  How 
differently  with  the  judge  who  has  to  give  the  final  deci- 
sion !  He  is  presented  not  with  a  mere  ex  parte  statement, 
but  with  all  the  evidence  at  once — a  great  assurance  of 
his  impartiality. 

29.  The  auditor,  provided  the  vicar-general  as  such  do 
not  investigate,  is  only  a  judge  delegate;  hence  an  appeal 
to  the  bishop  against  his  proceedings  is  admissible.  Yet 
in  causes  against  clerics  the  auditor  must  necessarily  be 

'  Instr.  Cum  Magnop.,  art.  i8. — The  actorum  redactor  ox  instructor  (il 
compilatore  degli  atti)  in  art.  29  is  not  the  secretary,  but  the  auditor  him- 
self. Such  is  the  rule  with  the  S.  C.  Epp.  "  C'est  le  juge  rapporteur,  et 
non  pas  le  secrfetaire,  qui  fait  I'abrfegfe  du  procfes  qui  doit  etre  iivre  il'ac- 
cus6  ou  4  son  dcfenseur,  pour  servir  de  base  i  la  d6fense.  C'est  aussi 
le  juge  rapporteur  qui  fait  relation  de  la  cause  k  la  Congregation  des  Car- 
dinaux."     (Stremler,  p.  608.) 

'Rightly  say  the  Acta  S.  5..  xv.  p.  3S5.  of  the  auditor:  "  Cuigue 
paiet  quanti  faciendum  sit  ut  illi.  quibus  tarn  mao-ni  niomenti  opus  commit- 
titur  ut  de  aliorum  actionibus  inquirant.  non  modo  doctrinae  sed  et  probitatis, 
integritatis  sancttuque  vitae  fama  ceteris praeceliant." 


56  Organization  of  the  Courts. 

himself  a  cleric,*as  stated  above  (n.  24),  although  he  is  only 
a  delegate  and  has  no  right  to  pass  sentence.  This  rule 
of  Canon  law  cannot  be  abrogated  by  any  custom  be  it 
ever  so  old.  To  a  question  proposed  to  the  S.  C.  Imm., 
1 8th  June  \2>^\,  An  ephcopus  ad  conficienduin  pi'ocessum 
possit  delegare  usque  ad  sent entiam  inclusive  jiidicevi  laiciun? 
the  answer  was  given,  Episcopiun  non  posse  delegare  jiidicem. 
laicum.  In  1775  it  decided  in  a  case  where  a  tonsured 
but  married  chancellor  had  conducted  part  of  the  inquiry, 
*'  Constare  de  nullttate processuum  et  ministri  curiae  episco- 
palis  consulant  conscientiae  suae.''  The  same  decision  was 
given  again  the  24th  Oct.  1781,  30th  June  1732,'  5th  March 
1855."  This  principle  is  confirmed  in  the  Instr.,  art.  12. 
A  chancellor,  if  he  should  happen  to  be  a  layman,  could 
not  even  judicially  investigate  whether  an  order  of  the 
court  have  been  complied  with  or  not."  The  Pope  alone 
could  by  special  indult  admit  laymen  as  auditors.  But 
the  laic  also  has  to  conduct  the  criminal  inquiry  accord- 
ing to  the  rules  of  Canon  law.  Should  he,  however, 
without  violating  any  substantial  forms  rather  proceed 
according  to  civil  law,  the  judge  proper  and  the  appellate 
courts  would  not  thereby  be  bound  to  do  the  same.* 

The  inquiry  is  to  be  conducted  by  a  single  auditor,  as 
it  is  only  in  order  to  collect  the  material.*  A  whole  col- 
lege of  auditors  if  they  would  have  to  act  collcgialiter 
would  be  exceedingly  slow  and  embarrassed,  and  there- 
fore useless. 

'  AJP.,  xni.  45,  46,  5T. 

*  AJP,,  xni.  972,  1043,  XX.  163.  XXI. 

'25  Sept.  1806.  AJP.,  xir.  853,  756.  Concerning  lay  officials  in 
general  see  supra,  p.  52,  note  i. 

*  7  Dec.  1855.     AJP.,  XX.  162.  XIX. 

*  This  is  no  doubt  correct,  as  a  rule,  and  in  particular  with  regard  to 
the  Inslruclio.  But  as  a  matter  of  fact  judicial  cases,  where  the  work 
of  collecting  all  subject-matter  for  the  court  proper  was  intrusted  to  a 
committee  of  auditors,  are  not  unknown  in  the  history  of  canonical 
procedure.     In  recent  times  we  have  had  the  Commissio  Investigatiouis. 


Personnel  of  the  Court.  57 


Art.  III.   The  Chancellor,  Secretary,  Clerk. 

30.  Innocent  III.  ordained  at  the  fourth  Lateran 
Council  that  in  the  inquisitorial  procedure  introduced  by 
him,  and  afterwards  so  famous,  all  judicial  acts  should  be 
recorded  in  writing.  He  says  :  "As  the  innocent  litigant 
is  sometimes  unable  to  prove  the  truth  of  his  denial  of 
the  false  accusation  by  an  unjust  judge  (for  the  mere  fact 
of  a  denial  is  in  the  nature  of  things  not  yet  a  direct 
proof),  hence,  that  falsehood  may  not  triumph  over  truth 
nor  iniquity  prevail  against  right,  we  ordain  that  in  the 
ordinary  as  well  as  extraordinary  trial  the  judge  shall 
always  employ  either  an  official  person,  if  possible,  or  two 
fit  men,  who  shall  faithfully  write  down  all  the  acts  of  the 
trial,  viz.,  citations  and  terms,  recusations  and  exceptions, 
petitions  and  rejoinders,  interrogatories  and  admissions, 
the  depositions  of  witnesses  and  documents  put  forth,  in- 
terlocutory and  final  appeals,  renunciations  and  conclu- 
sions, and  whatever  else  may  occur.  All  this  they  shall 
write  down  in  proper  order,  indicating  places,  times,  and 
persons.  And  all  that  has  thus  been  written  shall  be  given  to 
the  parties,  so,  however,  that  the  originals  shall  be  kept  by 
the  writers,  in  order  that  by  these,  if  any  quarrel  as  to  the 
judge's  proceeding  should  arise,  the  truth  may  be  shown. 
By  this  means  the  honor  of  honest  and  prudent  judges  will 
be  upheld,  while  at  the  same  time  the  just  right  of  inno- 
cent persons  shall  not  be  injured  by  an  imprudent  and 
unrighteous  judge." '  This  ordinance  is  in  full  force  to 
this  day.*  It  was  the  more  necessary  in  the  beginning, 
since  in  a  purely  inquisitorial  proceeding  the  accused 
would  otherwise  be  confronted  with  the  judge  alone. 
The  official  appointed  for  this  purpose  is  called,  from  his 

'  c.  II,  X.  II.  19. 

'  S.  C.  Imm.,  3  March  1694;  7  July  1699. 


58  Organization  of  the  Courts. 

writing  the  acts  and  documents,  Actuary  or  Clcrk^  of  the 
court ;  from  his  abridged  style  of  writing,  Notary  ;  from 
his  advancing  to  the  chancel  in  reading  his  papers,  Chan- 
cellor; and  in  many  localities,  from  the  place  of  his  em- 
ployment, Secretary^ 

'  From  clericus,  as  in  most  countries  only  the  clergy  were  able  to  rearf 
and  write,  and  clerics  of  the  minor  orders  were  then  commonly  employed 
as  notaries. 

*  No  one  who  has  had  to  deal  largely  with  Roman  documents  and  de- 
cisions, or  to  read  up  old  or  modern  writers  on  ecclesiastical  law  and 
discipline,  can  be  unaware  of  the  most  confoundedly  confused  way  of 
using  those  different  terms.  At  one  time  you  are  certain  they  all  mean 
the  same,  at  another  you  are  as  certain  that  a  notarius  is  not  a  secretarius, 
and  a  noble  cancellarius  by  no  means  a  simple  actuarius.  It  seems  to  us 
that,  although  now  these  terms  are  mostly  used  quite  indiscriminately, 
they  had  each,  according  to  Canon  law,  a  distinct  meaning.  A  notary  is 
an  officer  holding  a  permanent  commission  to  the  effect  that  all  docu- 
ments, public  or  private,  signed  under  his  own  hand  and  executed  in 
proper  form  are  true  instruments  in  law  and  valid  proof  in  court.  Of 
this  officer  commentators  generally  speak  in  the  preliminary  observations 
on  tit.  22,  dejide  instrumentoruvi,  1.  11.  By  Canon  law  every  bishop  has  the" 
power  to  create  notaries,  and  although  not  recognized  by  our  civil  courts, 
their  signature  would  have  to  be  admitted  as  evidence  by  every  ecclesias- 
tical court.  The  Chancellor  has  charge  of  the  chancery  or  Archives,  i  .e. 
the  place  where  the  records,  charters,  evidences,  or  any  important  docu- 
ments are  kept  (Archivist,  Registrar.  Cfr.  Reiffensttiel,  de  fide  Archivii, 
1.  II.  tit.  22,  n.  102  ff.).  He  was  not  necessarily  a  notary,  although  custom, 
supported  by  very  good  reasons,  soon  combined  the  two  offices  in  one. 
We  have  had  instances  here  in  the  United  States  where  bishops  had  their 
chancellors  made  notaries  public  by  the  civil  authority.  A  practical  move, 
we  think.  The  Actuary  was  a  clerk  employed  to  write  down  the  acta  of 
any  official  and  judicial  proceedings,  to  make  out  the  reports,  briefs  and 
abstracts,  etc.  In  course  of  time  he  was  also  called  Secretary,  as  one  of 
his  sworn  duties  was  to  keep  the  transactions  themselves  as  well  as  the 
report  or  minutes  thereof  secret. 

One  can  easily  understand  how  these  distinct  offices  might  be  filled  by 
the  same  person,  and  that  in  consequence  the  different  titles  lost  their  dis- 
tinct meaning  and  came  to  be  used  indiscriminately. 

On  the  history  of  these  offices  (notary,  secretary)  see  the  interesting 
chapters  (105.  106)  of  Thomassin,  Vetus  Eccl.  Discipl.  p.  I.  1.  2;  Van 
Espen,  p    III.  tit.  6,  c.  4.     In   regard  to  the  law  cfr.  Ferraris,  sub  vv. 


Perso7incl  of  the  Court.  59 

The //w/n/^//t?  uses  both  terms  Actuary  (art.  12)  and 
Chancellor  (arts.  8,  34).'  It  expressly  requires  the  presence 
of  the  chancellor  as  well  at  the  examination  (art.  8)  as  at 
the  final  proceedings  (art.  34),  and  that  of  the  secretary  at 
the  inquest  (art.  12).  The  chancellor  may  also  officiate 
as  notary  in  all  transactions  of  the  so-called  voluntary 
jurisdiction.'  Although  Innocent  III.  ordained  that  eccle- 
sia.stics  should  not  be  employed  as  clerks  of  the  court,* 
yet  the  Roman  Curia  itself  very  often  departed  from  this 
rule,  and  clerics  are  up  to  this  day  employed  as  clerks. 
Notwithstanding  this  universal  practice,  it  is  even  now 
allowable  to  employ  laymen.* 

For  the  edification  of  all  whom  it  may  concern  we  append  his  remark: 
Secretarius  qui  multa  scrihit  probabilius  fwn  excusatur  a  jcjunio.  Potest 
enim  secretarius  vires  habere  sufficientes  ad  niultuin  scribendiim ,  quamvis 
jejunet.  Immo  temperantia  et  jejunium  niaxime  condiuit  ad  z'aktudinem 
sedentarii.     Thanks,  good  old  Ferraris  ! 

'  The  Acta  S.  S.,  XV.  p.  386,  maintain  that  by  actuaiius  and  cancel- 
larius  the  Instruction  means  the  same  person.  Not  necessarily.  That 
in  art.  8  and  34  it  is  the  chancellor  of  the  diocese  (not  the  bishop's  private 
secretary,  except  he  be  specially  commissioned)  who  is  referred  to,  we 
have  no  doubt.  Art.  8  treats  of  an  extrajudicial  proceeding,  while  art.  34 
refers  to  the  public  and  final  hearing  of  the  case.  But  art.  12  speaks  of 
the  special  inquest  to  be  made  by  the  aiitiitor,  a  proceeding  wherewith 
the  court  proper  has  nothing  to  do  till  it  be  finished  and  \h^ proch  verbal 
(art.  29)  handed  over  to  the  judge.  For  this  special  work  the  auditor 
may  choose  his  own  clerk  or  actuary,  if  so  the  judge  (bishop  or  vicar- 
general)  allow.  Cfr.  Rota,  n.  654.  When  the  C.  PI.  B.  III.,  n.  311, 
adopts  the  opinion  of  the  Acta  S.  S.,  we  consider  it  to  be  a  directive  norm 
at  most. 

*  S.  C.  Epp.,   II  Feb.  1S06.     AJP  ,  Xli.  850,  750. 
«S.  C.  Epp.,  14  July  1772.     AJP..  xn.  118.  555. 

*  S.  C.  Imm.,  30  June  1S32.  AIP.,  xiif.  46,  58.  This  answer  refers 
to  a  particular  case  of  necessity.  The  very  next  month  (July)  the 
Archbishop  of  Bologna  asked  for  the  same  indult  again,  because  in  his 
whole  clergy  he  could  not  find  two  fit  subjects  for  the  offices  of  auditor 
and  notary  in  his  criminal  court.  The  request  was  granted  diirantibus 
circiinistantiis,  and  in  regard  to  the  clerk  with  the  clause:  dttmmodo  se 
abstineat  a  subscribetidis  examiuibtis  et  a  quocumque  exercitio  jurisdictionis. 
Ap.  De  Montault,  p.  471.     The  S.  Congr.  has  always  been  very  careful  to 


6o  Organization  of  the  Coitrts.  ■ 

The  notary,  however,  especially  if  a  layman,  has  lo 
make  out  the  acts  of  the  proceedings  only  materially ; 
that  is,  simply  to  write  whatever  he  is  ordered  to,  either 
by  the  law  or  the  judge.  He  is  not  allowed,  either 
directly  or  indirectly,  to  conduct  even  a  part  of  the  trial ; 
if  he  should,  for  instance,  in  the  absence  of  the  judge- 
auditor,  merely  attempt  to  examine  witnesses,  the  whole 
proceeding  based  thereon  would  be  void.' 

31*.  We  omit  a  passage  by  the  author  on  the  pay- 
ment to  be  given  to  the  clerk.  Custom  or  statute  must 
regulate  that  with  us.  But  we  add  a  few  remarks  that 
seem  to  apply  to  the  clerk  of  our  ecclesiastical  courts, 
whether  they  call  him  notary,  chancellor,  or  secretary. 
Reiffcnstuel,  1.  II.  tit.  22,  observes  that  the  notary,  when 
writing  out  an  instrument,  must  write  down  nothing  else 
but  what  he  has  seen  with  his  own  eyes  and  has  himself 
heard  (n.  27) ;'  that  he  should  always  use  the  same  sig- 
nature, so  that,  if  necessary,  it  may  be  authenticated  by 
comparing  his  signature  in  other  documents  (n.  31). 
Schmalzgrnber ,  ibid.,  says  the  notary  should  know  some- 
thing about  law,  although  he  need  not  be  a  Doctor  in 
law.  He  should  at  least  know  all  that  his  ofifice  de- 
mands, and  how  to  draw  up  the  different  instruments  in 
proper  form  (n.  5);  in  writing  out  the  record  from  his 
minutes  he  ought  to  write  the  words  in  full  without 
contractions  or  abbreviations ;  numbers  he  should  write 
clearly  and  distinctly,  so  that  they  cannot  be  changed  (n. 
12) ;  and,  in  general,  he  must  carefully  note  places,  times, 
and  persons  (13,  14).  We  also  call  attention  to  the  nice 
discussion   on  the   relative  value  of  the  clerH's  private 

distinguish  between  civil  and  criminal  cases  of  clerics,  and  in  the  latter 
10  uphold  the  principle  of  absolute  immttnity. 

'  S.  C.  Epp.,  25  Sept.  1806.     AJP..  XIII.  46,  61. 

*  "Caveat  actuarius  ne  in  scribendo  abundet  in  sensu  suo;  hoc  enim 
esset  et  ilagitiosum  et  ruinac  plenum." — Rota. 


Personnel  of  the  Court.  61 

notes  {minutae,  protocolluni)  and  the  official  record  or 
document  made  out  from  them  {instruinentuin),  apud 
Reiffenstuel,  1.  c,  n.  34  ff. 

Is  the  secretary  in  our  criminal  trial  bound  to  observe 
the  so-called  solemnitates  instrumentorum,  i.e.  certain 
formalities  by  which  alone  his  documents  or  records 
become  official  {publico)  ?  The  Instruciio  mentions  only 
the  subscription  to  the  act  in  the  extrajudicial  precept 
(art.  8j,  but  nothing  concerning  the  acts  belonging  to  the 
judicial  trial.  But  the  C.  PI.  B.  III.,  n.  314,  demands  that 
not  only  the  accused,  but  the  judge  also  and  the  clerk 
sign  the  depositions  of  defendant.  The  same  ought  to  be 
observed  with  the  depositions  of  the  witnesses,'  as  re- 
quired by  the  Instruction  on  matrimonial  causes,  §  14. 
It  would  be  advisable  also  for  the  clerk  to  observe  tlie 
noting  {prcesentatum),  that  is,  to  note  on  every  notice, 
letter,  or  document  offered  to  the  court  the  exact  date 
when,  and  the  name  by  whom,  it  was  presented ;  more- 
over, if  not  his  own  full  name,  at  least  his  initials.  Again, 
it  is  well  to  date  every  one  of  his  minutes  or  notes,  not 
only  the  record  he  may  afterwards  write  out.  Official 
copies  of  the  minutes  or  of  the  report  must  be  certified 
by  the  secretary's  signature." 

Art.  IV.   The  Apparitor. 

32*.  The  Apparitor,  so  called  in  the  English  ecclesi- 
astical law.  is  an  officer  who  appears  to  others  that  they 
may  appear  in  court.  He  is  the  official  messenger  (con- 
stable) to  carry  the  summons  to  those  whom  the  judge 
cites  to  appear  during  the  trial.  He  also  carries  the 
written  sentence  to  the  offender  or  his  advocate  that  he 
may,  if  so  he  intend,  lodge  an  appeal  before  the  judge. 

'  S.  C.  Epp..  24  July  1S32.     Pierantonelli.  p.  40. 
»  S.  C.  Epp.,  27  July  1759.     AJP.,  .\iii.  51,  HI. 


62  Organization  of  the  Courts. 

Canon  law  supposes  the  apparitor  to  be  a  regular  attend- 
ant and  duly  sworn  officer  of  the  court,  so  that  his 
affirming  of  having  properly  served  the  summons  is 
evidence  in  law.     Schmalzgniber,  1.  II.  tit.  3,  n.  25,  2°,  7°. 

Our  ecclesiastical  courts  in  the  United  States  have  no 
such  officers.  The  same  appears  to  be  the  case  in  other 
countries ;  for  the  Instructio,  art.  14,  provides  that  in 
such  case  necessary  writs  and  notices  may  be  served  either 
by  a  qualified  person  who  shall  afterwards  certify  to  the 
fact ;  or  through  the  mails  by  registered  letters,  when  the 
receipt  returned  will  be  evidence  that  the  summons  has 
been  served.     Cfr.  also  Instr.  1878,  art.  4. 

The  Acta  S.  S.,  XV.,  pp.  387,  550,  seem  to  imply  that 
the  sentence  should,  as  a  rule,  be  served  on  the  offender 
or  his  advocate  by  an  apparitor,  and  by  mail  only  then 
when  it  cannot  possibly  be  done  by  a  person. 

The  apparitor,  evidently,  may  be  a  layman.'  Of  these 
messengers  {apparitores,  cursores,  pedelli)  commentators 
generally  speak  under  tit.  3,  de  libelli  oblatione  {citatione), 
1.  II.     Cfr.  Smith,  n.  926. 


CHAPTER  II. 

THE    PARTIES. 

Art    I.    The  Prosecution. 

\.  The  Fiscal  Procuratok.^ 

33.  It  is  in  the  nature  of  things  and  a  rule  of  ancient 
law  that  the  .same  person  cannot  be  accuser  and  judge  in 

'  S.  C.  Epp.,  9  Feb,  1710.     AJP.,  xm.  44,  41. 

*  This  office  is  unknown  to  the  Decretals  and  their  commentators. 
Being  of  later  origin,  its  history,  nature,  and  duties  must  be  learned  from 
more  recent  writers.     Cfr.  Van  EsJ>en,-\>.  ni.  tit.  6,  c.  5.    Bouix  i.  470  ff. 


The  Parties.  63 

ihe  same  cause.  In  the  purely  inquisitorial  procedure, 
where  the  accused  is  to  be  examined  only,  the  judge,  in- 
deed, has  more  or  less  to  sustain  the  part  of  a  prosecutor, 
though  Innocent  III.  himself  guards  against  any  such 
view  of  his  new  ordinance  '  by  making  the  rumor  {fama) 
of  the  crime  committed  play  the  part  of  the  accuser. 
Very  soon,  therefore,  did  a  third  person  slip  into  the  courts 
even  of  that  time,  either  in  a  private  or  a  public  capacity 
to  begin  and  carry  on  the  prosecution.  To  distinguish 
this  proceeding  from  that  by  mere  inquiry,  it  was  called 
inquisitio  quae  Jit  aliquo  promovcnte  ipsain^ 

This  new  arrangement,  however,  being  contrary  to  the 
very  nature  of  mere  inquisition,  was  not  carried  any 
further  in  Canon  law.'  But  the  secular  courts  took  hold 
of  it  and  made  a  most  ample  use  thereof,  particularly  in 
England,  France,  and  Italy  :  and  the  institution  became 

Craisson,  n.  5767  ff.  Smith,  n.  912  ff.  We  retain  the  term  "fiscal  pro- 
curator" as  more  ecclesiastical  than  "public  prosecutor."  It  is  still 
used  in  Scotch  and  French  law.  For  the  etymology  of  the  term  consult 
the  writers  referred  to 

'  c.  31,  X.,  V.  3:  non  (anquain  sit  idem  ipse aicusator  et  judex,  sed quasi 
fama  deferente  vel  d<:nuticiante  clamore  sui  officii  deHtum  exequatur  {prae- 
latus),  etc. 

'  Hence  the  public  oryfjra//n>/«o/<'r.  Cfr.  Pronipsault,  s.  v.  Piotnoteurs 
des  officiality.  Promoter  is  used  in  a  very  different  sense  in  American 
law,  meaning  a  person  engaged  in  establishing  a  joint-stock  corporation. 
Bouvier,  s.  v. 

'  This  assertion  seems  too  general  and  can  only  mean  that  the  public 
prosecutor  or  promoter  did  not  then  at  once  become  a  regular  and  perma- 
nent office  of  the  ecclesiastical  judicature,  butonly  long  after  it  had  become 
such  in  the  civil  courts.  It  would  hardly  be  correct  to  say  that  ecclesiasti- 
cal prosecutors  (promoters)  in  some  particular  cases  did  not  appear  very 
soon  after  the  new  procedure  introduced  by  the  great  Innocent  111.  At 
least  they  seem  to  be  mentioned  by  later  commentators  and  practitioners 
of  the  thirteenth  century;  and  a  famous  canonist  of  the  fifteenth  century, 
speaking  of  ecclesiastical  public  officers,  sweetly  remarks:  did  non  potest 
quanta  mala  ubique  faciant  ilH  scelerati  exploratores  criininuni,  quos  pro- 
motores  appellant.  They  arc  moreover  mentioned  in  the  decrees  of  the 
pouncils  of  Constance  and  Basel. 


64  Organization  of  the  Courts. 

very  famous  at  the  beginning  of  this  century,  especially 
in  France,  where  the  State  Procurator  is  chiefly  guardian 
of  the  law,  and  therefore  takes  part  as  well  in  civil  as  in 
criminal  proceedings ;  he  may  even  in  a  civil  proceeding, 
where  the  law  appears  to  him  as  h.wing  been  injured,  take 
an  appeal  independently  of,  and  against,  the  will  of  the 
parties.  This  public  procurator  has  at  different  times  and 
in  various  countries  borne  the  name  of  Procurator  regis. 
Procurator  fiscatis,  Proinotor  fiscalis,  or,  in  short,  Fiscalis^ 
Later  on,  when  the  ofifice  of  fiscal  procurator  in  the  secular 
courts  had  been  fully  developed  and  had  proved  success- 
ful, most  ecclesiastical  courts,  following  the  views  of  the 
times,  adopted  it  for  the  trial  of  criminal  causes. 

34.  The  Instructio  does  not  leave  it  to  the  bishop 
whether  or  not  he  will  have  a  fiscal  procurator  for  his 
criminal  courts,  but  it  says  expressly :  Unicuique  Curiae 
opus  est  procuratore  fiscali  pro  justitiae  et  legis  tutela  (art. 
13).''  Articles  33,  34.  35,  of  the  same  instruction  make  it 
evident  that  the  fiscal  procurator  has  to  officiate  as  public 
prosecutor.  By  this  new  regulation '  the  Church  has 
abandoned  the  purely  inquisitorial  procedure  and  again 
approached  the  accusatorial  one.  For  as  soon  as  the 
delinquent  is  confronted  with  the  fiscal  procurator,  he  ap- 
pears as  defendant,  and  consequently  as  a  party  with 
more  or  less  rights.  The  fiscal  procurator  and  his  duties 
in  canonical  criminal  procedure  cannot  be  replaced  by 
any  other  officer.  Thus  it  would  be  of  no  co/isequence 
if  a  cleric,  e.g.  a  rural  dean,  should  make  a  formal  accusa- 

'  In  Amerira  this  officer  is  called  Atiomey-Gene7-al ;  in  England  also 
Solicitor-General. 

*  Acta  S.  S.,  XV.  p.  386:  Veruin  non  in  judiciis  tatituin  quae  ex  officio 
instittiuntur  sed  in  omnibus  judiciis  ejus  praesentia  est. 

'  The  Instructio  appears  to  be  the  first  positive  statute  in  Canon  'aw  by 
which  the  office  of  the  fiscal  procurator,  introduced  only  by  custom,  is 
made  a  regular  and  permanent  institution  and  probably  desiined  to  be- 
come general  in  the  whole  Church. 


The  Parties.  65 

tion  before  the  bishop,  leaving  the  fiscal  procurator  aside, 
nor  would  it  matter  at  all  that  the  bill  of  complaint  was 
as  correctly  and  perfectly  drawn  up  as  the  law  could  re- 
quire.' Again,  the  secretary,  chancellor,  or  clerk  of  the 
court  cannot  at  the  same  time  discharge  the  duties  of  the 
fiscal  procurator."  Though  it  seems  but  proper  that  the 
bishop  should  appoint  an  ecclesiastic  to  this  office,  yet  he 
may  also  authorize  a  layman,  because  the  procurator  after 
all  does  not  exercise  any  properly  so-called  jurisdiction.' 

The  fiscal  procurator  is  an  ofificer  of  the  bishop.  In 
committing  an  offence  the  delinquent  has  made  himself 
amenable  to  the  Church,  whose  duty  it  is  to  correct  and 
punish  whenever  necessary.  But  the  Church  is  represent- 
ed by  the  bishop,  who,  therefore,  becomes  the  party  seek- 
ing correction  and  satisfaction,  i.e.  the  complainant  against 
the  accused,  who  is  respondent  and  defendant.  Yet,  as 
the  bishop  himself  is  also  to  sit  in  judgment  against 
the  accused,  he  transfers  his  right  of  action  or  prosecu- 
tion to  the  fiscal  procurator,  and  that  for  two  reasons: 
first,  in  the  interest  of  justice  {projustitiae  ac  legis  iuteld); 
secondly,  that  he  may  not  even  to  mere  outward  appear- 
ance act  as  judge  in  his  own  cause.     The  procurator  is, 

'  S.  C.  Epp.,  Dec.  1785.  AJP..  xni.  44,  34.  We  take  this  to  mean 
that  no  matter  how  correct  and  formal  the  charge  may  be,  the  bishop 
cannot  thereupon  begin  a  formal  suitor  trial  without  his  fiscal  procurator 
taking  the  initiative. 

*  S.  C.  Epp.,  April  1727.     AJP.,  xill.  44,  33. 

•  S.  C.  Epp.,  2  July  1677.  S.  C.  Imm.,  30  June  1832.  AJP.,  xiii.  44, 
31.  32.  There  is  no  doubt  that  modern  writers  suppose  the  fiscal  procu- 
rator to  be  a  cleric,  at  least  in  criminal  cases  against  clerics.  Thus  Rota, 
n.  652,  says:  Est  autum  procurator  fiscalis  vir  ecclesiasticus,  etc.;  and  re- 
ferring to  the  statute  of  St.  Charles  Borromeo:  Sit  uttui  promotor  fisci, 
clericus  ft  juris  utriusqtu  doctor,  while  not  objecting  to  the  clericus,  he  ex- 
plains the  J.  U.  D.  by  saying  that  quantum  ^eri  potest,  fiscalis  promotor 
sit  in  jure  doctus  et  peritus.  The  same  is  implied  when  the  third  plenary 
Council  of  Baltimore,  n.  300,  admonishes  him  :  Sit  quidem  tiunquam  im- 
memor  se  contra  fratrcm  causam  ogere.     Cfr.  supra,  note  I,  n.  27. 


66  Organization  of  the  Cotirts. 

therefore,  bound  to  his  general  or  particular  commission 
received  from  the  bishop,  whilst  the  bishop  as  judge  is 
bound  only  to  the  law.  This  follows  necessarily  from  the 
fact  that  the  Instructio  embodies  two  postulates  of  the 
administration  of  criminal  law.  One  is  the  principle  of 
legality  demanding  that  the  rights  of  the  law  shall  be  up- 
held and  therefore  strictly  executed;  the  other  is  the 
principle  of  expediency,  demanding  that  the  public  wel- 
fare should  take  precedence  over  the  law  where  its  exe- 
cution would  be  injurious  to  society.  According  to  the 
first,  it  is  the  duty  of  the  bishop  to  prosecute  and  to 
punish  his  ecclesiastics  for  every  transgression  threatened 
by  the  law  with  punishment,  as  also  to  correct  their  evil 
ways  (art.  i).  According  to  the  second  (art.  3),  the  bishop 
has  often  to  consider  in  a  particular  case  what  may  con- 
duce more  to  the  salvation  of  souls  and  the  welfare  of  the 
Church,  to  prosecute  the  criminal  or  not.  Higher  inter- 
ests and  considerations  will  sometimes  make  it  very  ad- 
visable and  even  necessary  not  to  institute  a  criminal  pro- 
ceeding. There  are,  moreover,  in  ecclesiastical  as  in  civil 
law  delicts  as  to  which  it  depends  upon  the  will  of  a  third 
person  whether  or  not  they  are  to  be  prosecuted.  This 
third  party  will  probably  not  desire  it  if  thereby  he  would 
receive  more  injury  than  satisfaction.  Christian  charity 
in  such  cases  forbids  the  bishop  to  proceed  against  the 
criminal,  because  a  great  good  which  that  third  person 
cannot  and  will  not  sacrifice  would  thereby  be  lost.  For 
instance,  a  cleric  has  been  intimate  with  a  hitherto  blame- 
less maiden  of  marriageable  age ;  the  crime  has  as  yet  been 
kept  secret,  although  the  proofs  are  positive ;  the  girl, 
however,  protests  against  any  judicial  proceeding  lest  she 
herself  fall  into  bad  repute.  A  criminal  proceeding  in 
such  a  case  would  be  extremely  illegal  and  unchristian.' 

'  S.  C.  Epp.,  23  Mch.  1748.     AJP.,  XI.  1125,437.     Cfr.  on  this  point 
J\o(a,  n.  490  flf. ;  Stremler,  p.  154. 


The  Parties.  67 

That  such  considerations  require  great  pastoral  wisdom 
and  cannot  be  wholly  left  to  the  procurator,  is  evident. 
The  bishop  must  be  solicitous  himself  about  such  causes 
of  his  clergy. 

The  fiscal  procurator  having  obtained  sufficient  infor- 
mation must  apply  at  the  episcopal  court  for  an  investi- 
gation of  the  offences  of  clerics  that  have  come  to  his 
knowledge  through  notification  or  otherwise.'  Should 
the  fiscal  upon  a  general  or  special  episcopal  order  bring 
a  public  action,  he  must  make  his  motion  to  that  effect 
in  writing  in  the  episcopal  criminal  court,  and  in  his  bill 
of  complaint  must  state  the  name  of  the  accused,  the 
crime,  the  evidence,  and  the  names  of  the  witnesses,  ac- 
complices, etc.  He  must  hand  in  the  bill  of  complaint  at 
the  episcopal  chancery,  where  the  chancellor  will  affix 
thereto  X.\\e  praesentatum ;  all  the  rest  will  for  the  present 
be  left  to  the  court.'  After  the  investigation  has  been 
completed  and  the  court  has  determined  upon  the  fur- 
ther prosecution  of  the  cause,  he  cannot  change  his  mo- 
tions any  more,  particularly  if  the  accused  have  already 
brought  in  his  defence.*  If  the  defensive  proceedings 
should  prove  the  materials  obtained  in  the  investigation 
to  be  insufficient  for  conviction,  a  new  inquiry  can  be  or- 
dered only  by  the  court.* 

The  fiscal  procurator  has  generally  the  exclusive  right 
of  accusation.  This  appears  at  first  to  be  a  doubtful 
matter,  for  it  involves  the  duty  of  the  procurator  actually 
to  make  the  accusation  whenever  necessarj',  a  duty  which 
he  may  easily  neglect,  particularly  when  it  might  be  of 
interest  to  himself  not  to  bring  the  suit.  But  it  must  be 
remembered  that  he  is  an  officer  of  the  bishop  and  must 

'  AJP.,  XIII.  44,  29. 

•  AJP.,  XIV.  971.  35. 

*  S.  C.  Epp.,  30  June  1826.     AJP.,  xrii.  44,  37,  39. 

*S.  C.  Epp.,  30  June  1826.     AJP.,  xii.  1017,  860,  xill.  44.  38. 


68  Organization  of  the  Courts. 

bring  the  charge  whenever  the  bishop  orders  him  to  do 
so;  that,  moreover,  he  may  be  deprived  of  his  office  at 
any  moment  should  he  in  any  manner  show  neglect  or 
mismanagement  of  the  affairs  of  his  office. 

35*.  To  the  objection  that  such  a  public  prosecutor 
might  be  over-zealous  in  making  charges  against  clerics  a 
like  answer  may  be  given  ;  viz.  that  he  cannot  bring  a 
judicial  charge  without  being  ordered  by  the  bishop,  who 
must  examine  first  whether  there  be  sufficient  cause  for 
it.'  This  officer,  besides,  must  never  forget  that  even 
while  discharging  his  duty  of  prosecutor  he  is  to  serve  the 
law  as  well  as  justice,  and  that  consequently  he  is  bound 
to  respect  the  rights  of  the  accused,  and  not  to  press  his 
charges  beyond  the  bounds  of  equity,  nor  use  means  con- 
trary to  truth  or  justice.  Nay,  we  do  not  hesitate  to 
affirm  that  he  must  notify  the  auditor  of  any  evidence 
favorable  to  defendant,  which  he  may  perchance  have 
found  in  his  endeavors  to  get  proof  for  the  prosecution. 

The  author  spoke  above  (n.  i6)  of  a  general  mandate  by 
which  the  bishop  appoints  his  vicar-general  ^.s.  judex  ordi- 
narius  (official)  for  all  clerical  causes.  In  the  foregoing 
section  the  author  mentions  a  general  mandate  given  to 
the  fiscal  procurator  to  prosecute  criminal  cases.  In  a 
later  paragraph  he  deals  with  the  conflict  that  might  in 
some  case  eventually  arise  between  the  official  and  the 
procurator.  We  omit  the  paragraph  in  our  edition,  as 
in  that  event  there  is  but  one  very  simple  remedy,  viz. 
recourse  to  the  bishop,  who  must  decide  the  question. 
But  we  desire  to  call  attention  to  a  point  which  to  us 
seems  doubtful.  The  fiscal  procurator,  who  is  always 
appointed  by  letters-patent,  needs  no  written  commis- 
sion for  special  cases  if  he  has  a  general  mandate.     In 

'  "Quod  si  Episcopus  faciendum  esse  judicaverit,  procurator  fiscalis 
ab  eo  accipit  mandatum  causam  agendi  et  processum  proinovendi."  C, 
PI.  B.  J II.,  n.  301. 


The  Parties.  69 

that  case  the  bishop  or  official  will  merely  give  notice 
that  there  is  a  case  for  prosecution,  and  the  prosecutor 
will  at  once  draw  up  the  formal  charge  and  demand 
that  judicial  investigation  or  inquiry  be  made.  But  does 
the  general  mandate  imply  that  he  must  thus  officially 
proceed  even  when  he  is  not  so  notified  by  the  judge, 
but  because  he  knows  of  a  case  through  private  infor- 
mation or  rumor  or  private  denunciation  ?  Our  author 
clearly  thinks  so,  others  apparently.  Again,  if  it  be  an- 
swered in  the  affirmative,  is  the  fiscal  not  only  allowed 
but  bound  to  institute  the  suminaria  facti  cognitio  (art.  5) 
even  without  the  bishop's  notice  or  request,  simply  in 
virtue  of  the  general  mandate?  If  we  presume  to  state 
our  private  opinion,  we  may  be  pardoned  on  the  plea  that 
these  things  with  us  in  the  United  States  are  still  in  fieri, 
not  in  facto  esse;  hence  the  more  uncertainty  is  removed 
from  the  very  start,  the  better.  Whatever  may  have 
been  or  still  be  the  custom  in  Europe,  we  believe,  judging 
by  the  general  tenor  of  our  last  plenary  Council  (n.  308 
fT.)  and  of  the  Instructio  itself,  that  the  fiscal  procurator 
should  not  make  a  formal  charge  in  any  case  before  he 
has  been  notified  to  the  effect  or  requested  by  the  Ordi- 
nary. Again,  we  think  he  should  not  on  his  own  account 
and  without  the  bishop's  explicit  consent  undertake  any 
extrajudicial  or  private  special  inquiries ;'  otherwise  he 
would  certainly  be  liable  to  be  considered  too  officious  by 
most  of  our  American  clergy.  However,  as  no  general 
law  prevents  the  bishop  from  granting  even  such  full  and 
one  might  say  illimited  power  to  his  fiscal  procurator,  all 
doubt  will  be  removed  if  the  bishop  does  fully,  minutely, 
and  explicitly  state  in  the  letters-patent  what  rights  and 
duties  the  procurator  shall  have.  Then  let  the  procura- 
tor abide  by  his  commission. 

'  Van  Espen  (I.  c.  dt.  8,  c.  i.  n.  37)  speaking  of  Belgium  says  that  this 
rule  is  passim  ubiqut  receptum. 


yo  Oi^ganizatioji  of  the  Courts. 

2.  Other  Plaintiffs. 

36.  Under  the  new  law  of  the  Instructio  every  person 
has  a  right  to  present  a  complaint  or  make  an  accusation 
which  may  lead  to  criminal  proceedings  against  an  eccle- 
siastic. No  particular  qualifications  on  the  part  of  such 
complainants  are  required,  nor  may  they  be  confounded 
with  the  accusers  in  the  old  accusatory  proceeding.  The 
Instruction  on  episcopal  courts  in  the  Archdiocese  of 
Prague  says  on  this  point :  "  All  irreproachable  priests, 
nay,  all  members  of  the  Catholic  Church,  against  whom 
no  suspicion  of  malicious  deformation  can  be  brought, 
may  give  notice  of  criminal  cases  to  the  court.  But  the 
court  will  pay  no  attention  to  anonymous  notices  or  to 
notices  that  are  sent  by  unknown  persons  without  giving 
the  place  of  their  residence." 

(*)  In  the  former  proceedings  by  way  of  accusation  or 
denunciation  not  every  one  was  qualified  to  make  the 
judicial  complaint.  Commentators  (in  1.  V.  tit.  i)  gener- 
ally put  down  the  rule  that  all  those  are  qualified  who  are 
not  disqualified  by  the  law.  As  grounds  of  such  legal 
disqualification  are  named  the  sex,  defect  of  age,  infamy, 
reverence  and  the  tie  of  blood,  hatred  and  revenge,  etc. 
However,  in  case  of  an  atrocious  crime  every  one  was 
qualified  to  complain.  That  at  present  such  disqualifica- 
tions are  no  longer  to  be  considered  is  clear  from  the  fact 
that  the  Instructio  admits  only  the  inquisitorial  proceed- 
ing called  ex  officio.  But,  as  we  shall  see  later,  it  is  the 
characteristic  note  of  this  proceeding  that  the  bishop  can- 
not enter  upon  it  before  he  has  by  a  strict  inquiry  satis- 
fied himself  {plena  vel  setnplena  probatione)  that  there  is 
sufficient  cause  for  it.  Any  complaint  or  charge  or  infor- 
mation against  a  cleric  may  open  the  way  to  such  inquiry, 
but  not  directly  to  the  trial  as  in  other  proceedings. 
{Rota,  n.  648  ff.)     No  account  should  be  taken  of  any 


The  Parties.  71 

accusation  made  either  by  word  of  mouth  only  or  by 
anonymous  or  imperfect  (without  place  or  date  or  name 
or  residence)  letters,  or  in  mere  general  terms.  iRota, 
n.  419.) 

Art.  II.   The  Defence. 

I.  The  Accused. 

37*.  Whoever  is  accused  of  an  offence  against  the  laws 
is  entitled  by  the  command  of  Christian  charity  and  by 
natural  right  not  to  be  held  guilty,  much  less  to  be  pun- 
ished, before  the  charge  has  been  fully  substantiated.  If 
convicted,  the  criminal  still  has  the  further  right  not  to 
suffer  more  punishment  than  the  law  demands  of  him  ac- 
cording to  the  nature,  the  weight  and  grievousness  of  the 
offence.  It  is  as  much  to  protect  these  rights  of  the  ac- 
cused as  to  vindicate  the  law,  that  the  Church  has  insti- 
tuted tho.se  legal  forms  and  methods,  the  rules  of  pro- 
cedure, to  prove  the  fact  as  well  as  the  special  nature  of 
an  alleged  offence. 

So  strictly  does  the  Church  maintain  this  principle,  that 
should  a  cleric  having  committed  an  offence  against  her 
laws  freely  accuse  himself  before  the  bishop  and  openly 
confess,  the  bishop  could  not  pronounce  sentence  against 
him.  He  may  act  with  him  as  father.  To  proceed  as 
judge  and  vindicator  of  the  law,  he  must  first  obtain  a 
judicial  confession,  one  made,  proved,  and  judged  upon 
according  to  legal  rules.  Not  even  a  canonical  admonition 
may  the  bishop  give  to  a  cleric  who  is  accused,  without 
first  obtaining  at  least  a  summary  information  to  establish 
the  alleged  fact  (art.  5).  No  accused  shall  be  condemned 
without  having  had  in  some  way  or  other  his  defence. 
Hence  if  the  accused  were  willing  to  waive  all  defence,  or 
unwilling  to  engage  counsel  because  he  considers  the 
matter  too  unimportant,  or  thinks  his  case  evident  and 
defence  unnecessary,  or  believes  the  decision  to  go  against 


72  Organization  of  the  Courts. 

him  whatever  the  defence  might  be,  or  is  too  poor  to  pay- 
counsel's  fee,  still  the  Instructio  commands  the  bishop  to 
appoint  ex  officio  a  defensor  for  the  accused  (art.  31).* 
Various  reasons  for  this  provision  are  assigned  by  writers. 
The  main  one  is  to  avoid  doing  injustice  to  the  accused. 
Another  one  is  that  a  cleric  being  one  of  the  Church's 
chosen  members  is  no  longer  lord  over,  or  absolute 
possessor  of,  his  good  name  and  reputation.  The  Church, 
for  the  sake  of  her  faithful  children  and  her  own  honor, 
has  a  right  to  it.  Hence  he  is  not  at  liberty  to  give  it 
away ;  and  if  he  will  not  defend  it  himself,  the  law  of  the 
Church  appoints  another  for  the  purpose. 

An  intelligent  and  impartial  student  of  the  Commenta- 
tors on  the  second  book  of  the  Decretals  will  be  delight- 
fully astonished  to  see  how  wisely  the  great  legislators 
of  the  Church  combined  in  the  work  of  canonical  pro- 
cedure all  the  thousand  different  elements  by  which  man 
may  prove  the  truth  {quibus  Veritas  vcre  demonstrata 
eliicescat;  art.  16);  thus  to  maintain  on  the  one  hand  the 
majesty  of  the  law  {legis  tutctd),  and  on  the  other  the  na- 
tive rights  of  the  defendant  {justitiae  iuteta). 

38.  According  to  the  law  now  in  force  it  is  the  duty  of 
the  accused,  upon  being  summoned,  to  present  himself 
before  the  judge  for  examination  and  defence  (art.  21,  25). 
The  citation"^  is  essential  to  the  whole  proceeding;  to 
omit  the  former  will  render  the  latter  void.*  Not  even  a 
censure  previously  threatened  may  be  inflicted  without 
summoning  delinquent  ''  ad  dicendam  causain  quare''^ 

According  to  the  Insir.,  arts.  22,  23,  it  is  not  absolutely 
necessary  to  specify  the  particulars  of  the  charge  in  the 

'  S.  C  Epp..  30  May  1823.  AJP.,  xx.  go,  xlh.  ii  May  1844.  AJP., 
xvti.  444,  171S. 

'  Commentators  in  1.  u.  tit.  3.     Picrant..  tit.  5,  n.  6  ff.     Rota,  n.  620  ff. 
^  S.  C.  Epp..  22  Sept.  1741.     AJP.,  xni.  47,  78,  79. 
*  S.  C.  Epp.,  29  Sept.  1761.     AJP.,  XI.  1094,  376. 


The  Parties.  73 

citation.  Whether  this  be  advisable  or  not  in  a  particu- 
lar case,  is  left  to  the  prudence  and  discretion  of  the 
judge.  He  will  not  mention  the  specific  charge,  much 
less  the  particulars,  if  he  believe  the  accused  would  in 
consequence  not  heed  the  summons  or,  if  innocent,  would 
be  carried  so  far  away  by  indignation  as  to  create  dis- 
turbance among  the  people.  That  omission  will  not  void 
the  proceeding,  but  merely  entitle  defendant  to  a  new  term 
for  answering  the  charge  after  it  is  made  known  to  him 
{Instr.,  art.  28).  If  the  accused  does  not  obey  a  per- 
emptory summons,  the  court  will  proceed  against  him  in 
contumaciam  {Instr.,  art.  24),  except  he  offer  good  reasons 
for  his  non-appearance,' when  a  new  term  will  be  granted. 
In  most  criminal  cases  of  clerics'  the  accused  had  better, 
during  the  inquiry,  withdraw  to  a  religious  house,^  since 
his  influence  in  public  during  this  time  would  not,  as  a 
rule,  be  beneficial.*  The  welfare  of  the  Church  and  the 
salvation  of  souls  often  demand  a  judicial  trial ;  canonical 
procedure,  although  in  its  very  nature  something  of  a 
public  act,  cannot  always  be  avoided,  for  the  ecclesiastical 
authorities  are  not  omniscient.  An  accused  cleric  may 
therefore  find  himself  compelled,  by  the  love  of  God  and 
of  the  souls  intrusted  to  him,  patiently  to  stand  a  criminal 
trial,  however  unjustly  thrust  upon  him. 

The  most  ample  right  of  defence  is  granted  to  the  ac- 
cused by  our  Instruction,  arts.  22,  25,  27  sq.,  30  sqq.,  36. 
We  call  special  attention  to  the  confrontation  of  wit- 
nesses implied  in  arts.  27,  32.     The  processus  legitimatio 

*  Acta  S.S.,  XV.  389  sqq. 

*  We  omit  here  as  impracticable  the  author's  remarks  on  the  im- 
prisonment of  the  accused,  his  release  on  bail,  his  relegation  or  consign- 
ment to  a  certain  limited  place  (county,  village,  or  religious  house).  Cfr. 
SlrfmUr,  p.  62  f 

*  AJP.,  XMI.  47.  74. 

*  This  will  depend  altogether  on  the  peculiar  circumstances  of  each 
case. 


74  Organization  of  the  Courts. 

(the  legitimizing  of  the  whole  proceeding  by  observing 
certain  requisites  of  the  law)  consists  mainly  in  that  con- 
frontation ;  without  it  one  of  the  principal  means  of  an 
effectual  defence  would  be  set  aside  (see  infra,  n.  69). 
For  the  final  pleading  a  special  defensor  is  granted  to 
the  accused  (see  Instr.,  art.  30  sq.). ' 

2.   The  Advocate  or  Counsel. 

39.  The  Itistructio,  while  granting  to  the  accused  the 
right  to  conduct  the  defence  himself  (art.  27),  allows  him, 
if  he  choose,  to  employ  an  advocate  or  counsel  (art.  30).' 
The  advocate  plays  a  most  important  part  in  the  canonical 
cririiinal  procedure.  Not  every  ecclesiastic  has  the  re- 
quired knowledge  of  criminal  laws  and  criminal  procedure, 
and  moreover  the  coolness  and  deliberation  necessary 
while  defending  himself.*  Some,  however  may  possess  all 
that  and  be  fit  to  undertake  the  defence  of  another,  i.e. 
act  as  advocate. 

The  accused  is  not  confined  to  special  persons,  to  pro- 
fessional advocates,  in  the  employment  of  a  defender,  but 
has  a  free  choice  even  when  the  bishop  has  appointed 
permanent  advocates  at  his  court.'  There  are  excluded, 
of  course,  the  judge,  the  chancellor,  and  the  fiscal  pro- 
curator; the  last,  in  particular,  would  become  guilty  of 
prevarication  should  he  officiate  as  counsel  for  both 
parties. 

(*)  According  to  the  Instructio  (art.  30)  the  defendant 
may  choose  for  his  advocate  an  ecclesiastic  or  a  layman, 
either  one  to  be  approved  by  the  bishop.*     The  wording, 

'  The  Instructio  calls  him  defensor.  The  Decretals  call  him  advocatus. 
patronus,  and  treat  of  this  office  in  1.  I.  tit.  37  de  Postulando.  where  the 
commentators  also  may  be  consulted.  Cfr.  Van  Espen,  1.  c,  c.  2. ;  Crais- 
son,  n.  5642;  Smith,  n.  766. 

*  Mota,  n.  726  sqq. 

=•5.  C.  Epp.,  3  Jan.  1819.     AJP.,  xx.  457,  x. 

*  S.  C.  Imm.,  30  June  1832.     AJP.,  xiii.  51,  118. 


The  Parties.  75 

however,  of  this  article  in  the  Cum  Magnop.  clearly  shows 
that  if  an  able  ecclesiastic  can  be  found  to  conduct  the 
defence,  no  laymen  should  be  employed.  It  seems  rather 
incongruous  that  before  a  purely  ecclesiastical  tribunal 
and  in  strictly  canonical  causes  lay  advocates  or  lawyers 
should  be  admitted  to  plead  whether  for  or  against  a 
cleric.  For  wise  and  pious  reasons  did  the  fathers  of  the 
third  plenary  Council  of  Baltimore,  notwithstanding  that 
the  Instruction  requires  the  bishop's  approval  for  the  ad- 
vocate, ask  of  the  Holy  See  not  to  allow  laymen,  and  enact 
the  statute  that  the  advocate  must  always  be  an  ecclesi- 
astic. Even  a  clerical  advocate  the  judge  may  for  good 
reasons  refuse,  and  request  that  another  one  approved  by 
him  shall  be  engaged  (n.  302).  No  mention  of  laymen 
whatever  is  made  in  the  answer  (n.  IV.)  of  the  S.  C.  Prop, 
concerning  the  defender  at  the  trial  before  the  Committee 
of  Investigation.     It  only  mentions  alium  sacerdotem. 

40.  The  advocate  must  take  the  oath  that  he  will  con- 
scientiously conduct  the  defence.  Sometimes,  as  the 
bishop  may  deem  proper,  the  oath  contains  the  provision 
to  keep  the  matter  secret  (art.  32).  If  the  trial  is  once 
begun,  the  advocate  must  carry  to  the  end  the  case  he 
took  in  hand.  In  the  manner  of  conducting  the  defence 
he  is  quite  independent  of  the  accused.  If  he  should 
falsely  state  or  admit  any  facts,  the  defendant  may  cor- 
rect such  statements  before  the  final  sentence,  or  after- 
ward? in  the  appeal.  An  error  in  law  on  the  part  of  the 
advocate  will  not  be  prejudicial  to  the  defence  as  long  as 
the  court  do  correct  it. 

(*)  In  the  manner  of  conducting  the  defence  the  advo- 
cate must,  as  the  commentators  say,  observe  the  laws  of 
propriety  and  moderation,  of  truth  and  of  faithfulness 
{modestia,  Veritas,  fidelitas).  Hence  he  must  abstain  from 
invectives,  arrogant  and  presumptuous  insinuations ;  ef- 
fusive verbosity  would  also  be  out  of  place  ;  exceptions 


76  Organization  of  the  Courts. 

or  protests  against  the  ruling  of  the  court  should  be  made 
in  moderate  language.  Truth  is  averse  to  any  trickery, 
sophistry,  ambiguous  and  misleading  statements.  Al- 
though bound  to  defend  his  client  as  much  as  possible, 
yet  the  advocate  may  not  do  so  per  fas  et  tie/as.  By 
faithfulness  he  is  bound  to  conduct  the  defence  to  the 
utmost  of  his  ability,  and  to  avoid  conscientiously  what- 
ever might  injure  his  cause  ;  also  not  to  betray,  nor  make 
improper  use  of,  any  secrets  confided  to  him  by  his  client. 
The  advocate,  no  doubt,  has  a  right  to  his  fee.  We  do 
not  know  if  any  special  provisions  on  this  point  have  as 
yet  been  made  in  any  of  our  ecclesiastical  courts  in  the 
United  States.  The  defendant  ought  to  agree  before- 
hand with  counsel  as  to  the  fee  to  be  paid  whether  the 
cause  be  won  or  lost.  But  who  is  to  pay  counsel  ap-" 
pointed  ex  officio,  the  defendant  or  the  bishop?  As  we 
have  no  "  clerical  bar,"  it  would  seem  that  one  could  not 
be  commanded  by  the  bishop  to  give  his  services  gratis, 
and  that  if  appointed  ex  officio  he  had  a  right  to  a  fee,  to 
be  paid  by  defendant,  if  convicted,  otherwise  by  the  bishop 
from  the  fisc  of  the  diocese  (see  infra,  n.  116).  What 
shall  be  a  just  fee  for  the  advocate  must,  according  to 
the  commentators,  depend  on  the  importance  of  the  case, 
the  amount  of  work  done,  the  lawyer's  skill  and  ability, 
and  legal  custom. 

3.  The  Attorney  or  Proctor. 

41.  Canon  law  does  not  admit  representation  of  the 
accused  in  criminal  cases.'  A  reason  given  by  canonists 
is  that  the  attorney  becomes  in  virtue  of  his  commission 
dominus  litis,  that  is,  the  case  becomes  his  own  personal 
affair,  and  sentence  will  be  given  upon  him  personally. 
Now,  this  would  appear  unnatural  in  case  of  another's 

'  Sanli,  1.  n.  tit.  i,  n.  19;  De  Angelis  V.  p.  360. 


Tfie  Pa?' ties.  *J*J 

Clime  or  delict.  Hence  representation  is  allowed  in  civil 
cases  only.  Another  but  somewhat  poor  reason  is  some- 
times given ;  viz.  that  if  the  accused  were  represented  by 
attorney  and  could  thus  remain  away,  he  might  easily 
escape  execution  of  the  sentence  by  flight.  We  cannot 
imagine  a  single  case  under  our  circumstances  where  this 
reason  would  prove  anything,  speaking  as  we  do  of  crimi- 
nal cases  of  clerics  before  ecclesiastical  courts;  nor  do  we 
think  that  a  difference  can  be  made  in  the  matter  between 
original  and  appellate  courts.  The  Instructio,  art.  30, 
does  not  prove  the  contrary,  as  repracscntare  and  defetidcre 
are  to  be  referred  conjunctively  to  the  same  person,  who 
may,  therefore,  be  called  either  attorney  or  advocate. 
This  is  evident  from  the  wording  of  the  same  article  in 
the  Cum  Magnopere. 

The  case  is  quite  different  with  the  prosecution.  The 
fiscal  procurator  may,  by  permission  of  the  bishop,  prose- 
cute through  his  attorney  approved  by  the  bishop,  which 
is  evidently  nothing  else  than  the  appointment  of  a  special 
prosecutor.  Again,  the  bishop  from  whose  sentence  an 
appeal  is  made,  may  defend  his  part  against  the  appellant 
by  his  own  fiscal  procurator,  or  depute  the  metropolitan's 
procurator  as  his  attorney.'  The  Promotor  fiscalis  Gene- 
ralis  TiX.  Rome,  an  officer  appointed  by  Benedict  XIII. 
in  1724,  to  represent  the  bishops  in  any  criminal  cases 
brought  to  Rome  by  way  of  appeal  or  recourse,  is  simply 
the  attorney-general  for  those  bishops. 

'  Commentators  treat  of  attorneys  whether  in  fact  or  at  law  under  tit. 
38.  De  I'rocuraloribus,  1.  I.  Dccret.  Cfr.  Oaisson,  n.  5615  S.\  Smith. 
n.  756  ff. 


THE  CANONICAL  PROCEDURE. 


SECTION   I. 

FORMS  AND  PARTS  OF  CANONICAL  FROCEDURE. 


CHAPTER  I. 

FORMS   OF   PROCEDURE. 

Art.  I.    Judicial  and  Extrajudicial. 

42.  We  have  already  remarked  above  (n.  3)  that  the 
division  of  punishments  into  corrective  ones,  whose  direct 
object  is  the  amendment  and  reformation  of  the  delin- 
quent, and  vindictive  ones,  whose  direct  object  is  mainly 
the  restoration  of  the  disturbed  order  and  retribution,  is 
in  most  cases  rather  logical  than  real.  For  all  punish- 
ments effect  more  or  less  in  the  offender  a  change  for  the 
better,  except  capital  punishment  which  the  Church  does 
not  inflict  precisely  because  it  precludes  the  future 
reformation  ;  on  the  other  hand,  the  least  offensive  means 
of  correction,  a  paternal  admonition,  may,  under  certain 
circumstances,  appear  to  delinquent  as  undeserved  casti- 
gation.  From  this  it  will  be  seen  that  a  strict  division  of 
the  procedure  into  disciplinary,  i.e.  such  as  applies  cor- 
rective or  reformatory  means,  and  criminal,  i.e.  such  as 
imposes  a  penalty  for  the  committed  offence,  is  not  prac- 


Forms  of  Procedure.  79 

ticable.  The  power  to  impose  disciplinary  and  criminal 
punishments  the  Catholic  Church,  as  we  remarked  in  the 
Introduction,  received  from  her  Divine  Founder  Himself. 
Upon  the  occasion  of  conferring  this  power  He  at  the 
same  time  pointed  out,  in  a  manner  unsurpassed  and  as  a 
pattern  for  all  times,  the  order  and  course  of  the  discip- 
linary and  criminal  procedure:  "5/  aiitem  peccaverit  in 
te  f rater  tuus,  vade,  et  corripe  eum  inter  te  et  ipsum  solutn  : 
si  te  audierity  lucratus  eris  fratrem  tuum.  Si  autcm  te 
non  audierit,  adliibe  tecum  adhiic  unum  vel  duos,  ut  in  ore 
duoruin  vel  triuui  testium  stet  omne  vcrbum.  Quodsi  non 
audierit  eos,  die  ecclesiae  :  si  autem  ecclesiam  non  audierit, 
sit  tibi  sicut  ethnicus  et  pubiicanus^  '  The  Master  speaks 
here  first  of  a  private  reproof,  therefore  of  a  secret  extra- 
judicial procedure,  then  of  a  reproof  before  witnesses, 
therefore  of  a  more  public  one,  and  finally,  by  intimation, 
of  the  regular  criminal  procedure.  The  Church  still  re- 
tains this  division  of  the  canonical  procedure  against  her 
clergy.  In  the  following  pages,  therefore,  we  distinguish 
between  extrajudicial  and  judicial  proceedings,- without 
entering  here  more  fully  into  the  technical  designations, 
significations,  and  relations  developed  in  Canon  law. 

43*.  To  rightly  understand  what  are  judicial  and  what 
extrajudicial  acts  or  proceedings  it  is  necessary  to  know 
exactly  what  is  a  judicium.  Not  everything  that  a  judge 
does  is  a  judicial  act,  but  only  what  he  does  in  judicio. 
Commentators  in  1.  IL,  "  de  Judiciis."  generally  give  the 
following  definition :  Judicium  est  legitima  controversiae 
inter  Actor  em  et  Reum  ortae  apud  Judiccm  disceptatio  et 
definitio ;  that  is,  the  examination  and  decision  of  a  mat- 
ter in  issue  between  plaintiff  and  defendant,  made  by  the 
judge  according  to  law.  All  the  parts  of  the  definition 
are  essential;   there  must  be  a  matter  at  issue  between 

■  Malt,  xviii  15  ff. 


8o  Forms  and  Paris  of  the  Procedure. 

opposing  parties;  tlie  examination  and  inquiry  must  re- 
veal the  truth  of  the  case  to  be  stated  in  the  judgment 
or  sentence;  all  this,  however,  must  be  done  by  a  person 
invested  with  the  necessary  power  or  jurisdiction,  the 
judge,  who  must  proceed  in  the  whole  trial  according 
to  the  rules  and  norms  set  down  by  the  law. 

All  acts  of  a  judge  belonging  to  the  conduct  of  such  a 
trial  are  judicial ;  all  others  are  extrajudicial.  It  follows 
from  the  foregoing  that  not  every  jurisdictional  proceed- 
ing is  also  judicial.  In  fact,  the  exercise  of  the  episcopal 
jurisdiction  partakes  only  to  a  very  small  extent  of  a 
judicial  character.  Most  of  his  administration  is  extra- 
judicial.' Even  when  he  has  to  guard  the  laws  and  dis- 
cipline of  the  Church  by  removing  occurrences  of  abuse, 
incentives  of  scandal,  wilful  occasions  and  proximate 
causes  of  delinquency,  the  means  to  be  employed  are 
still  extrajudicial.  In  the  case  of  clerics  these  are  mainly, 
according  to  the  Instructio,  art.  4,  admonitions  paternal 
as  well  as  canonical,  the  command  to  make  the  spiritual 
exercises,  the  special  precept,  and  the  extraordinary 
means  of  the  Tridentine  suspension  ex  informata  con- 
scientia.  Nor  does  it  follow  that  these  acts  of  the 
bishop  should  be  called  judicial  because  certain  rules 
and  norms  of  the  law  must  be  observed.  Not  all  legal 
acts,  acts  performed  under  certain  forms  of  law,  are  judi- 
cial proceedings.  Nay,  more  :  the  bishop  might  proceed 
against  a  cleric  for  a  criminal  offence,  lay  a  heavy  punish- 

'  Pierantonelli,  prooem.  n.  3.  In  fact,  all  the  functions  which  belong 
to  what  canonists  call  the  bishop's  jurisdutio  adntinistrativa,  politica, 
correctionnlis  are  properly  speaking  extrajudicial.  With  regard  to  crim- 
inal jurisdiction  the  bishop  is  not  bound  to  proceed  judicially,  even  were 
the  crime  fully  established,  as  long  as  by  extrajudicial  proceeding  the 
object  of  the  law  can  be  secured.  And  as  concerns  civil  litigation  of 
clerics,  we  think  the  party  or  parties  will  always  find  it  to  their  interest,  if 
the  I'isbop  settle  the  matter  extrajudicially. 


Forms  of  Procedure.  8 1 

ment  on  him,  and  yet  all  without  judicial  form  or  trial,  by 
mere  extrajudicial  or  administrative  procedure.  True,  he 
can  do  this  only  with  the  free  consent  of  the  delinquent, 
and  under  special  circumstances. 

44.  There  is  yet  another  question  to  be  answered : 
when  shall  these  different  kinds  of  procedure,  the  judicial 
and  extrajudicial,  be  applied?  This  question  can  be 
fully  answered  only  when  we  come  to  treat  of  each  of 
these  procedures  in  particular. 

According  to  the  direction  of  our  Lord  the  first  of 
these,  the  monitio  paterna,  should  be  first  employed  ;  if 
this  does  not  suffice,  then  the  monitio  canonica  and  the 
pracceptum  may  be  tried  ;  finally,  as  a  last  remedy,  the 
criminal  trial  is  resorted  to.  Ordinarily,  therefore,  the 
last  should  not  be  employed  before  the  second,  nor  this 
one  before  the  first  has  been  tried  :  this  is  the  regular 
course.  The  admonitions,  however,  as  special  fatherly 
and  official  warnings  are  supplied  in  many  cases  by  gen- 
eral laws  previously  enacted,  which  thus  become  constant 
monitors.  Frequently  also,  from  the  very  nature  of  the 
delict,  criminal  procedure  is  immediately  in  order,  as  in 
the  case  of  the  notorium. 

Hence,  the  above  question  may,  in  general,  be  an- 
swered according  to  the  principle  Nulla  poena  sine  lege. 
If  a  certain  action  of  the  ecclesiastic  was  already  threat- 
ened with  punishment  by  a  law,  then  it  may  be  imposed 
after  the  proper  proceeding ;  but  if  no  punishment  had 
been  annexed,  then  it  is  first  to  be  threatened  in  a  special 
proceeding  for  that  purpose.' 

'  Certain  principles  from  which  an  answer  to  the  question  can  be  de- 
rived are  generally  laid  down  by  canonists,  in  I.  v.  tit.  i,  when  speaking 
of  the  duties  of  the  judge  consequent  upon  a  denunciation.  Cfr.  also 
StremUr,  p.  163. 


82  Forms  and  Parts  of  the  Procedure. 


Art.  II.    Accusatorial  and  Inquisitorial.     TJie  Instruction. 

45.  The  forms  of  the  judicial  criminal  procedure  will 
greatly  depend  on  what  one  considers  to  be  the  general 
principles  of  criminal  law.  When  inquiring  for  these  we 
must  not  lose  sight  of  the  fact  that  the  procedure  is  only 
a  means  towards  a  certain  end.  As  to  this  the  Instructio, 
art.  II,  observes  in  a  general  way:  ''Processus  instruitur 
.  .  .  et  ad  fitiein  perducitur  eo  consilio,  ut  omni  studio 
atque  prudentia  Veritas  detegatur  et  cognitio  turn  criminis 
cum  reitatis  aut  innocentia  accusati  exurgat!'  The  prin- 
cipal object  of  punishment  in  the  criminal  system  of  the 
Church  is  the  reformation  of  the  offender.  If  the  ulti- 
mate object  of  tlie punishment,  the  amendment  of  the  delin- 
quent, is  not  obtained,  it  is  mostly  his  own  fault  ;  how- 
ever, we  are  not  now  concerned  with  that,  but  rather  with 
the  object  of  the  criminal  procedure,  which  we  have  said  to 
be  the  investigation  and  discovery  of  the  truth.  If  this 
object  is  not  obtained,  if  the  truth  is  not  discovered, 
the  fault  lies,  independently  of  accidental  circumstances, 
either  in  the  rules  of  procedure  themselves  to  which  the 
judge  is  bound,  or  in  the  application  of  these  rules. 

Two  further  questions  then  arise:  how  must  the  judi- 
cial criminal  procedure  be  regulated  by  the  law  in  order 
to  make  the  discovery  of  the  truth  possible  ?  and,  how  can 
the  judge  by  the  aid  of  these  rules  of  criminal  procedure 
discover  the  truth?  The  second  question  will  be  an- 
swered later ;  at  present  we  have  only  to  do  with  the 
former. 

One  could  reason  quite  extensively  a  priori  as  to  the 
best  rules  of  criminal  procedure,  but  the  deductions  ob- 
tained would  be  the  same  as  the  results  of  experience 
derived  from  the  history  of  the  criminal  procedure. 

Procedure  by  accusation  and  by  inquisition  are  the  two 


Forms  of  Procedure.  83 

principal  forms  of  strictly  judicial  criminal  proceedings 
known  to  Canon  law.'  We  may  dismiss  a  third  form, 
that  by  judicial  denunciation,  which  in  some  parts  is  like 
the  accusatorial,  in  others  more  like  the  inquisitorial  pro- 
cedure. 

46.  In  procedure  by  way  of  accusation,  the  plaintiff 
appears  before  the  judge  and  fully  spreads  out  before 
him  the  evidence  already  collected ;  then  the  accused  ap- 
pears and  presents  in  opposition  his  materials  of  defence. 
Upon  all  the  material  thus  presented  the  judge  bases  his 
decision  without  inquiring  further  whether  perhaps  any 
other  evidence  might  be  found  of  the  guilt  of  the  accused 
whom  he  must  acquit,  or  whether  the  accused  whom  he 
must  condemn  might  not  have  been  able  to  produce 
more  counter-evidence  to  obtain  his  acquittal.  At  most, 
he  may  say  non  liquefy  the  matter  is  not  clear  to  me ;  fur- 
nish me  further  evidence. 

In  a  proceeding  by  way  of  inquiry,  on  the  contrary,  the 
judge  acts  ex  officio.  There  is  no  plaintiff  in  this  case 
whose  duty  it  would  be  to  furnish  the  evidence.  The 
judge  himself  has  to  collect  the  material,  and  when  he 
has  enough,  or  can  find  no  more,  he  passes  sentence. 
Not  until  after  he  has  himself  collected  all  the  material 
does  he  enter  upon  the  logical  and  juridical  question  as 
to  whether  an  offence  was  committed,  and  if  so,  what 
one,  and  what  punishment  ought  to  be  inflicted. 

With  regard  to  the  parties,  they  can  be  properly 
spoken  of  only  in  the  accusatorial  proceeding.  For  it  is 
only  here  that  plaintiff  and  defendant  appear  before  the 
judge  with  equal  rights  and  equal  liabilities.  The  one 
and  the  other  must  support  his  own  cause  as  well  as  he 
can,  as  the  judge  will  not  do  anything  to  furnish  evi- 
dence for  either  one.     Nor  does  it  matter  much,  as  re- 

'  Commentators  in  1.  v.  lit.  i  explain  fully  the  different  character  of 
these  proceedings.     Also  Van  Espen,  in.  tit.  8,  c.  i. 


84  Forms  and  Parts  of  the  Procedure. 

gards  the  form  of  proceeding,  that  the  plaintiff  be  a  pub- 
He  oflficer,  the  fiscal  procurator.  But  in  the  purely  in- 
quisitorial proceeding  no  accuser  or  prosecutor  need 
appear.  Enough  that  the  judge  have  information  of  a 
crime  committed,  and  he  must  proceed  ex  officio  to  a 
judicial  inquiry,  in  order  to  collect  whatever  evidence 
there  may  be  to  prove  the  crime.  True,  here  also  the 
accused  may  defend  himself,  yet  not  against  his  equal, 
but  against  the  judge. 

Again,  the  trial  will  differ  quite  materially  with  regard 
to  defendant  according  as  the  procedure  is  accusatory  or 
inquisitory.  For,  in  the  first  case  the  accusation  is  at 
once  laid  before  the  accused  and  an  opportunity  of  im- 
mediate defence  given  to  him  ;  the  defence  is  completely 
left  in  his  own  hands.  He  may  defend  himself  to  the 
utmost  or  waive  all  defence,  plead  guilty  or  let  plaintiff 
try  to  prove  the  charge  without  opposition.  In  the 
purely  inquisitorial  proceeding  the  defence  seems  to  pro- 
ceed from  the  judge  as  much  as  the  charge.  It  is  the 
judge  who  must  inquire  into  everything  that  might  prove 
the  accused  not  guilty.  And  although  in  this  the  accused 
may  assist  and  help  the  judge,  yet  he  certainly  appears 
as  one  to  be  examined  rather  than  to  defend  himself. 

47.  In  the  course  of  time  many  changes  were  worked  out 
in  these  kinds  of  the  earlier  canonical  procedure,  so  that 
their  characteristic  features  could  hardly  be  distinguished 
any  more.  The  new  form  of  canonical  trial  established 
by  the  Instruciio  of  1880  seems  to  combine  some  features 
of  both  older  procedures.'  Technically,  indeed,  it  is 
called  an  inquisitorial  procedure.  Yet,  although  the 
judge  himself,  in  order  to  come  as  near  the  truth  of  the 
matter  as  possible,  takes  the  principal  part  through  his 
auditor  in  collecting  the  evidence,  nevertheless  the  fiscal 

'  Cfr.  our  remarks  in  llie  Preface. 


Forms  of  Procedure.  85 

procurator  appears  as  the  real  accuser.  On  the  other 
hand,  such  important  privileges  are  granted  to  tlie  accused 
in  respect  to  his  defence,  that  as  party  in  a  criminal  trial 
he  may  be  very  well  satisfied  with  the  position  allowed 
him  by  the  Instructio. 

The  Instruction  starts  from  the  principle  that  it  is  the 
duty  of  the  bishop  to  punish  and  to  correct  the  delinquent. 
His  authority  is  therefore  interposed  ex  officio.  That  a 
suit  be  instituted  depends  no  longer  on  a  private  com- 
plainant ;  nor  is  it  the  judge  who  enters  a  formal  accusa- 
tion, but  the  public  prosecutor,  the  fiscal.  The  further 
ex  officio  proceeding,  the  investigation  by  the  judge,  ap- 
proaches the  principle  of  the  Inquisition.  In  the  purely 
inquisitorial  procedure  the  judge,  as  before  noted,  exer- 
cises two  opposite  functions,  those  of  accuser  and  judge; 
something  that  modern  views  do  not  approve.  Hence 
the  judge  of  inquiry,  according  to  the  Instructio,  does  not 
proceed  any  further  than  to  collect  all  the  material ;  with 
this  he  has  performed  his  part  as  accuser;'  he  retires  from 
the  case  leaving  this  part  to  the  fiscal  procurator,  who 
must  now  continue  the  prosecution.  On  this  last  stage 
the  principle  of  accusation  is  again  predominant.  When 
giving  judgment,  the  judge  is  only  judge  and  no  longer 
accuser.  The  more  the  inquisitorial  form  obtains,  the 
greater  is  the  activity  of  the  judge;  while  in  the  litigious 
or  accusatory  one  he  has  only  to  conduct  the  proceedings 
and  render  judgment. 

That  no  transgressions  may  escape  the  notice  of  the 
court,  the  Instructio  introduces  the  inquisitorial  method  ; 
but  that  the  judge  may  appear  as  an  impartial  judge,  not 
as  a  party,  is  the  object  of  the  accusatorial  form. 

'  Not  exclusively  nor  mainly  as  such;  for  he  also  collects  whatever  de- 
fendant niay  plead  for  himself.     Cfr.  supra,  n.  28. 


86  Forms  and  Parts  of  the  Procedure. 


Art.  III.  Plenary  and  Summary. 

48.  We  have  repeatedly  had  occasion  to  remark  that 
the  Instructio  regulates  only  the  summary  disciplinary  and 
criminal  procedure.  In  the  preamble  it  allows  the  Ordi- 
naries in  the  exercise  of  their  disciplinary  jurisdiction 
over  clerics  to  make  use  of  plainer  and  more  expeditious 
iorms,  formas  magis  oeconomicas  adhihere ;  and  according 
to  art.  10  the  judge  may  proceed  fonnis  summariis  et 
absque  judicii  strepitu.  How  then  are  we  to  conceive 
this  summary  proceeding?    What  is  its  nature? 

In  civil  as  in  criminal  cases  canonists  distinguish  be- 
tween the  plenary  and  the  summary  proceeding.  The 
expression  summary  process  in  a  civil  case  frequently  sug- 
gests a  somewhat  hasty  proceeding,  where  the  decision  is 
only  provisional  and  subject  to  a  thorough  examination 
and  final  judgment  in  a  subsequent  ordinary  trial.  Such, 
however,  is  not  the  true  sense  of  the  term  in  Canon  law, 
least  of  all  when  referred  to  a  criminal  case.  The  differ- 
ence between  plenary  and  summary  proceeding  is  thus 
stated  by  Ferrante  :'  "  Judicioruni  divisio  petitur  ex  diver  so 
modo,  quo  ilia  exercentur;  vcl  enim  sunt  ordinaria  in  quibus 
servant ur  soleninitates  omnes  juris,  vet  summaria,  in  quibus 
ea  servantnr.  quae  ticcessaria  sunt  ad  rei  veritatem  detcgen- 
dam,  reliquis  omissis,  quae  magis  ad  solemnitatetn  judicio- 
ru7n,  quam  ad  rei  necessitatem  pertinent." 

Cardinal  de Lucca  enumerates  several  of  the  superfluous 
solemnities  of  the  trial,  which  he  c^Ws,  Judaisms,  that  is 
Jewish  subtleties  :"  "  Ordinarium  judicium  est  illud,  quod 
exigit  solemnitatem  libelli,  et  litiscontestaiionis  ac  etiam 
publicationis  ac  conclusionis,  aliasque  solemnitates  ab  utroque 
civili  et  canonico  jure  praescriptas.  .  .  .  Summariumverum 

'  Elem   J.  Can.,  c.  3. 

*  Rei.  Curiae  R.,  disc.  i.  n  25. 


Forms  of  Procedure.  87 

est  illud,  quod  dictis  solcmnitatibus  iion  stibjacet,  sed  nidlas 
vel  alias  respective  cxigit  pro  diver  sis  sty  I  is." 

49*.  Commentators  explain  the  nature  and  characteris- 
tics of  these  different  trials  under  tit.  1,1. 1.  The  plenary 
proceeding  is  cdAlcd  pie nariuvi,  because  the  rules  and  for- 
malities prescribed  by  law  are  fully  observed  ;  ordinarium, 
because  this  full  procedure  was  ordinarily  instituted  in 
judicial  trials,  according  to  the  order  of  the  law;  solemne, 
because  most  of  the  formalities  to  be  observed  were  pre- 
scribed by  the  law  not  directly  in  the  interests  of  justice, 
but  rather  for  the  solemnity,  dignity,  and  majesty  of  the 
court.  It  is  easily  understood  why  such  trial  was  said 
to  be  carried  on  cum  strepitu  foretisi,  with  public  pomp 
and  noise. 

The  other  kind  of  proceeding  was  called  summariTim, 
because  it  was  so  abridged  as  to  exhibit  only  the  sum  or 
substance  of  a  regular  trial ;  extraordinarium,  because  it 
could  be  used  in  special  cases  only  indicated  by  the  law  ; 
oeconomicum,  because  it  prevented  waste  of  time,  work,  and 
expenses  by  a  more  expeditious  way  of  arriving  at  a  de- 
cision ;  sivipliciter  et  de piano,  because  of  its  simplicity  and 
plainness  as  against  the  pompous  display  of  the  plenary  ; 
finally,  sine  figiira  et  strepitu,  for  the  same  reason. 

We  consider  the  matter  important  enough  to  show 
more  clearly  yet  the  difference  between  both  procedures; 
for,  as  a  great  canonist  remarked  twcjity  years  ago,  nearly 
all  ecclesiastical  trials  may  nowadays  proceed  in  forma 
summaria.^ 

Any  one  desirous  to  get  in  a  moment  a  general  idea  at 
least  of  all  that  is  implied  in  a  plenary  trial,  may  take 
Vivas'  edition  of  Reiffenstuel  and  run  through  the  index 
of  vols.  2,  3,  or  do  the  same  with  V xoiessox  Santi  s  work, 
vol.  2.     He  will  probably  find  more  than  he  desires.     For 

'  Acta  S.  S.,  V.  p.  39.  The  remark  is  from  a  dissertation,  t/ir  judidis 
tumiiiariis,  1.  c.  by  Avanziiii,  the  founder  of  the  Acta. 


88  Forms  and  Parts  of  the  Procedure. 

a  fuller  exposition  let  him  read  Dr.  Smith's  work,  vol.  2, 
p.  II.  ch.  III.  It  is  impossible  li^ere  to  indicate  all  those 
formalities.  Suffice  it  to  explain  shortly  what  formalities 
may  be  left  out  in  the  summary  proceeding,  which  is 
clearly  and  distinctly  described  by  Clement  V.  (Clem. 
Saepe  2,  de  verb,  signif.,  V.  II).  According  to  this  con- 
stitution the  judge  need  not  demand  a  bill  of  complaint, 
nor  insist  on  a  formal  contest  over  the  issue  ;  he  may  hold 
court  on  legal  holidays  ;  he  should  cut  off  delays,  and  as 
far  as  possible  shorten  the  trial  by  refusing  to  admit  un- 
necessary and  dilatory  pleas  and  appeals,  and  by  putting  a 
check  to  contentions  and  quarrels  between  the  parties,  the 
advocates  and  attorneys,  and  a  superfluous  production  of 
witnesses.  On  the  other  hand,  he  must  be  careful  not  to 
exclude  any  necessary  evidence  or  lawful  defence.  More- 
over the  summons  must  be  served,  nor  shall  the  oath 
against  malice  and  slander,  or  the  oath  of  true  testimony 
be  omitted 

From  the  foregoing  statute  canonists  conclude  that  in 
tiie  summary  proceeding  all  those  formalities,  subtleties, 
and  nice  points  may  be  omitted  which  are  only  the  work 
of  human  will ;  but  that  such  means,  rules,  and  proceed- 
ings which  are  by  natural  or  divine  law  required  to  serve 
truth  and  justice,  or  which  Canon  law  declares  to  be  sub- 
stantial and  essential  to  every  judicial  trial,  cannot  be  set 
aside  without  rendering  the  whole  proceeding  void.  As 
the  Instructio  puts  it,  the  judge  may  proceed  in  a  sum- 
mary manner  scrvatis  semper  regulis  jiistitiae  substantiali- 
bus  (art.  10).  Yet  these  arc  only  general  rules  subject  to 
widely  diverging  interpretations,  and  as  various  applica- 
tion in  practice.  In  order,  therefore,  to  guarantee  the  full 
rights  of  ju.stice,  and  to  insure  at  the  same  time  a  regular 
and  uniform  canonical  procedure  (preamble  to  I?istr.),  the 
Sacred  Congregation  has  expressly  laid  down  those  sub- 
stantial  norms  in  its  now  famous  Instruction.     They  are 


Forms  of  Procedure.  89 

enumerated  by  Rota,  n.  603,  under  eight  heads,  as  follows : 
I.  The  summons;  2.  All  relevant  evidence  for  the  prose- 
cution as  well  as  the  defence  ;  3.  The  oath  against  malice, 
and  that  for  true  evidence  ;  4.  The  right  of  defendant  to 
file  his  articles  ;  5.  A  sufficient  term  given  him  to  do  so  ;  6. 
Exceptions  and  interlocutory  appeals ;  7.  The  summons 
to  defendant  to  hear  the  sentence ;  8.  Sentence  to  be 
given  in  writing.  Craisson,  n.  6cx)5,  adds  another;  viz. 
that  any  petition  of  defendant  shall  at  once  be  put  on  rec- 
ord. This  is  also  implied  in  the  more  general  rule  given 
by  Pierantonelli ,  prooem.,  n.  2,  that  all  such  documents 
shall  be  filed  with  the  acts  as  may  be  required  afterwards 
to  prove  to  the  interested  parties  or  to  the  higher  au- 
thority that  the  essential  forms  of  a  just  trial  have  been 
observed.  Here  we  suspect  to  see  the  reason  why  the 
Cum  Magnopere  demands  so  much  writing,  ?'«  scriptis} 

50.  The  summary  proceeding,  evidently,  is  just  as 
thoroughly  conducted  as  the  ordinary,  and  nothing  is 
omitted  therein  that  may  be  useful  or  serviceable  in  the 
discovery  of  the  truth.  Only  the  non-essential  formalities, 
which  Canon  law  drew  to  a  considerable  extent  from  the 
Roman,  may  be  omitted  ;  their  omission  does  not  make 
the  proceeding  null.'  We  rriust  pass  by  the  history  of 
this  procedure.     That  its  importance,  however,  may  be 

'  We  call  attention  to  ihe  remarkable  difference  of  art.  9  in  VOrdina- 
rio  from  the  same  article  in  Cum  Magnopere  (see  appendix).  We  infer 
therefrom  that  in  Italy  and  France  the  solemn  proceeding  is  still  to  be 
considered  the  normal  or  ordinary  one,  and  where  it  can  be  freely  and 
successfully  carried  out.  it  must  be  done.  Rota,  n.  607.  For  the  bishops 
of  the  United  States,  however,  no  other  procedure  is  made  obligatory  or 
even  left  elective  than  the  summary  one,  as  established  by  the  Instruc- 
tion. 

*  Rota,  n.  611.  pertinently  remarks  that  the  two  clauses  to  proceed 
summarie,  simpliciter  et  de piano,  and  the  other,  to  proceed  solafactiveritate 
inspecta  must  not  be  confounded.  The  first  simply  implies  our  sum- 
mary procedure,  whereas  the  other  refers  to  a  kind  of  trial  without  any 
proper  order  or  form,  and  which  canonists  call  a  strange,  odiou*.  and  ter- 


90  Fo7nns  and  Parts  of  the  Procedure. 

thoroughly  appreciated,  we  wish  to  observe  that  the  greai 
Innocent  III.  prepared  its  introduction;  Boniface  VIII. 
granted  it  first  to  the  Dominicans,  and  later  to  the  other 
orders.  Gradually,  under  the  furtherance  of  Popes  Clem- 
ent v.,  Sixtus  v.,  Pius  v.,  and  Clement  VIII.,  it  found 
admission  into  the  ecclesiastical  courts  for  the  secular 
clergy.  It  became  more  and  more  evident  that  too  many 
formalities  only  conduced  to  lengthen  the  proceeding,  to 
furnish  numerous  grounds  of  nullity,  and  to  serve  chican- 
ery, while  justice  and  truth  would  be  forced  to  retire.  In 
the  plenary  trial  they  clung  more  to  the  letter  of  the  law, 
as  the  Pharisees  did  at  the  time  of  Christ,  whilst  in  the 
summary  one  they  strove  to  grasp  the  spirit  and  sub- 
stance of  the  law.  At  Rome  the  summary  procedure 
has  enjoyed  the  greatest  favor'  for  more  than  a  century, 
whereas  the  ordinary  one  has  gone  almost  entirely  out 
of  use.  In  the  S.  Congregation  of  Bishops  and  Regulars, 
to  whom  the  appeal  lies  in  criminal  cases  of  ecclesiastics, 
the  summary  procedure  is  exclusively  employed  ;"  and  in 
appeals  on  account  of  errors  of  procedure,  it  passes  sen- 
tence of  nullity  only  when  an  essential  form  has  been 
violated.' 

Note^. — As  this  work  treats  only  of  criminal  procedure, 
it  is  unnecessary  to  explain  the  distinctive  features  of 
both  the  civil  and  criminal  trial.  Sufifice  it  to  call  atten- 
tion to  the  notable  distinction  by  canonists  between  a 
civil  suit  against  crime  {de  crimine  civiliter)  and  a  crim- 
inal trial  {de  crimine  criminal  iter). 

rible  proceeding.  It  is  also  called  judicitttn  stalarium,  ex  abrupto,  more 
belli,  and  takes  place  when,  on  account  of  the  notoriety,  atrocity,  and 
cruelty  of  the  crime,  the  judge  is  content  with  any  solid  proof  of  the  fact 
in  order  to  pronounce  sentence  at  once.     The  difference  is  evident. 

'  De  Lucca,  1.  c,  disc.  34.  n.  6. 

'  See  Appendix. 

^  De  Lucca,  1.  c,  disc.  38,  n.  22.  * 


Judicial  Evidence,  91 


CHAPTER  IT. 

JUDICIAL   EVIDENCE. 

Art.  I.  General  Remarks. 

51*.  Judicial  evidence/  in  the  modern  acceptation  of 
the  term,  is  all  that  is  offered  and  admitted  in  court  as 
tending  to  prove  or  disprove  the  matter  in  issue.  Judicial 
proof  is  the  clear  and  evident  demonstration  of  the  mat- 
ter at  issue,  made  in  court  by  judicial  evidence.  There 
is  no  proof  without  evidence,  but  there  may  be  evidence 
without  proof.  Canon  law  and  canonists,  when  speaking 
de  Probationibus  (1.  II.  tit.  19),  treat  only  of  the  general 
questions  concerning  evidence,  leaving  it  to  succeeding 
titles  to  treat  in  detail  of  the  special  kinds  of  evidence. 

The  treatise  on  evidence  and  its  use  in  criminal  courts 
is  evidently  of  the  highest  importance.  The  whole  and 
sole  object  of  criminal  procedure  is  to  prove  the  exist- 
ence of  the  crime,  to  demonstrate  the  truth  of  the  charge. 
Whether  the  fact  be  proved  or  not  depends  on  the  evi- 
dence admitted  in  court.  Hence  the  many  questions 
concerning  its  nature,  legal  character  and  weight,  effect, 
object,  and  the  modes  or  methods  of  introducing  it.  It 
is  plainly  impossible,  in  a  little  work  like  the  present,  to 
develop  these  questions  as  fully  as  they  deserve,  and  we 
must  refer  our  readers  for  fuller  information  to  the  com- 
mentators and  authors  generally  quoted.*     A  few  of  the 

'  Bottix,  t.  I.  p.  I.  sec.  VI.;  Craisson,  n.  569S  ff. ;  Smith,  n.  813  ff  ;  San- 
guineti,  n.  587  ff. — Nearly  all  of  this  second  chapter  is  written  by  the 
editor. 

*  Wc  cannot  suppress  the  remark  that  to  get  acquainted  with  some 
compendious  writer  on  the  Common  law  of  Evidence  such  as.  e.g.  Sir 
J.  Stephen,  H.  Roscoe.  T.  Starkie,  would  prove  not  only  very  interesting. 


92  Forms  and  Parts  of  the  Procedure. 

more  important  preliminary  remarks  may  find  a  place 
here. 

Different  Kinds  of  Evidence. — We  distinguish  direct 
{inartijicialis)  and  indirect  {artificialis)  evidence.  The 
first  is  such  that  it  tends  of  itself  directly  and  imme- 
diately, without  the  intervention  of  proof  of  another  fact, 
to  establish  the  existence  or  non-existence  of  the  fact  in 
question.  Indirect  (presumptive,  circumstantial)  evidence 
is  that  which  tends  to  prove  a  fact  by  proving  directly  the 
existence  of  another  or  others  from  which  the  first  may 
be  inferred  (see  n.  84). 

Again,  we  distinguish  parol  (depositions  of  witnesses, 
admissions  of  the  accused)  and  documentary  (written) 
evidence  (see  n.  85).  The  distinction  observed  in  Common 
law  between  primary  and  secondary  evidence  becomes 
useless  when  speaking  of  Canonical  criminal  procedure. 

52*.  The  Weight  of  Evidence. — Here  we  have  first  to 
explain  the  important  distinction  between /^r/>r/ and  m- 
perfect  evidence,'  or  such  that  will  establish  a  full  proof 
{probatio  plena),  or  only  semi-proof  {p.  scmiplend).  Per- 
fect or  full  evidence  is  that  which  is  of  itself  sufficient  to 
convince  the  judge  of  the  existence  of  the  crime  ;  in  other 
words,  evidence  sufificient  to  establish  the  truth  of  the 
matter  previously  at  issue.  The  judgment,  consequently, 
must  always  correspond  with  perfect  evidence.  Canon- 
ists sometimes  speak  of  the  fullest  or  clearest  evidence 
or   proof   {probationcs   appertissimae,  evident issimae,  luce 

but  highly  instructive  for  our  future  clerical  advocates  and  jurisconsulti. 
They  will  certainly  gain  a  clearer  insight  into  the  rationale  of  some  rules 
of  the  Canon  law  on  Evidence.  For  like  reasons  we  refer  to  Henry  and 
Harris,  where  the  part  on  evidence  (pp.  106-365)  is  undoubtedly  the  most 
interesting  for  a  clerical  reader.  If  an  able  Catholic  lawyer  would  give 
us  a  book  on  Ecclesiastical  Trials  in  the  nature  and  style  of  the  one  just 
named,  it  would  be  a  great  boon. 

'  Not  exactly  the  same  as  prima-facie  and  conclusive  evidence  in  Com- 
mon law. 


Judicial  Evidence.  93 

clariores),  meaning  proofs  so  evidently  establishing  a  fact 
that  even  to  suspect  any  possible  proof  to  the  contrary 
must  appear  unreasonable.  This  highest  degree  of  evi- 
dence is  required  in  criminal  cases  to  justify  sentence  by 
which  any  of  the  severer  punisiiments,  e.g.  degradation, 
is  to  be  laid  on  defendant,  on  the  principle  that  "  Satius 
est  impuiiitinn  rclinqui  facinus  nocentis,  qiiam  innocentem 
damnariy  '  However,  to  give  sentence  even  for  some 
slighter  punishment,  the  judge  must  be  sustained  by  full 
evidence  of  the  crime.  Imperfect  evidence,  if  it  be  not 
offered  in  such  abundance  as  to  make  a  full  proof,  cannot 
convict  the  accused.  The  judge  must  in  every  case  be  at 
least  morally  certain  of  the  crime,  without  any  reasonable 
doubt  to  the  contrary.' — Semi-proof  arises  from  imperfect 
or  insufficient  evidence.  Such  evidence  merely  estab- 
lishes a  probability,  greater  or  less,  but  no  certainty  of 
the  crime. 

Bouix'  enumerates  six  kinds  of  perfect  evidence  :  I. 
The  depositions  of  at  least  two  classical  witnesses  to  the 
same  j)oint ;  2.  An  official  or  otherwise  authentic  docu- 
ment ;  3.  Conclusive  presumptions  of  law  {juris  et  de 
jure):  4.  In  civil  actions  the  oath  {juramentum  dcciso- 
rium)  made  by  one  party  on  the  request  of  the  other;  5. 
The  judicial  confession  ;  6.  The  evidence  or  notoriety  of 
the  fact.  Imperfect  evidence  is  furnished — i.  By  the  depo- 
sition of  one  witness,  or  of  several  single  witnesses,  or  of 
two  non-classical  witnesses ;  2.  By  writings  of  a  private 
character;  3.  By  a  document  admitted  as  authentic  only 
on  the  strength  of  tlie  handwriting;  4.  In  civil  actions  by 
the  oath  {jur.  suppletoriuni)  demanded  by  the  judge  in 
confirmation  of  a  statement ;  5.  By  inconclusive  presump- 
tion ;  6.  In  civil  actions  by  public  rumor  when  legally 
proved. 

Another  important  question  concerning  the  weight  of 

'  C.  J.  Civ.  *  Insti-uctio,  art.  i6.  »  Vol    ii.  p.  303. 


94  Forms  and  Parts  of  the  Procedure. 

evidence  arises  in  case  of  opposite  or  contrary  evidence ; 
viz.  the  question  of  its  prevalence.  SantV^  very  nicely 
explains  the  question.     We  give  his  rules.* 

In  case  of  conflicting  evidence  the  judge  must  see  first 
whether  it  be  a  true  or  only  an  apparent  conflict.  If 
there  be  real  opposition,  the  evidence  is  either  equally 
strong  or  it  is  not.  If  not,  the  principle  is  major  proba- 
tio  praefertiir  minori  and  consequently  plena  probatio 
absorbet  semiplenatn.  If  the  evidence  appear  equally 
weighty  on  both  sides,  it  is  neutralized,  and  judgment  in 
a  civil  case  will  be  non  liquet,  in  a  criminal  non  est  reper- 
tus  culpabilis.  In  privileged  causes,  however,  the  judge 
would  pronounce  in  favor  of  that  cause.  Other  prin- 
ciples to  be  observed  are  that  direct  evidence  is  better 
than  indirect ;  that  specific  and  particular  evidence  is 
stronger  than  general ;  that  two  or  even  more  half- 
proofs  will  not  establish  full  proof  against  a  criminal  de- 
fendant except  their  combined  weight  tend  towards  the 
same  point  so  strongly  as  to  produce  positive  certainty. 

53*.  The  Object  of  Evidenced — The  general  rules  as 
commonly  stated  by  writers  on  Common  law*  agree 
with  those  of  Canon  law.  They  are  mainly  the  following: 
1st.  The  evidence  must  be  conjincd  to  the  point  in  issue. 
Truth  and  justice  demand  the  observance  of  this  rule ; 
the  first,  in  order  to  avert  confusion  and  obscurity  which 
would  arise  from  irrelevant  matter  freely  introduced  ;  the 
second,  in  order  that,  the  true  state  of  the  case  being 
established,  justice  may  be  more  effectually  done  either 
as  regards  the  law  or  the  accused.  Hence  only  such  evi- 
dence can  be  admitted  which  bears  directly  or  at  least  in- 
directly (collateral   facts)  on    the    issue ;    all    irrelevant, 

'  h.  t.  n.  24  ff. 

*  Cfr   also  Reiffenstuel.  h.  t.  n.  73  ff. 

*  Reiffcnstttel,  h.  t.  n.  31  ff. 

*  Cfr.  fiotivier,  s.  v.  Evidence. 


Judicial  Evidence.  95 

foreign  and  useless  evidence,  no  matter  by  whom  it  may 
be  offered,  must  be  rigidly  excluded.  Whether  the  evi- 
dence offered  be  relevant  to  the  issue  or  not,  the  court 
will  decide.  2d.  Tlie  substance  of  the  issue  must  be 
prot'cd.  Consequently  in  a  criminal  process  it  is  abso- 
lutely necessary,  but  at  the  same  time  quite  sufficient,  to 
bring  evidence  of  such  a  nature  as  will  prove  that  de- 
fendant has  substantially  committed  the  crime  as  speci- 
fied in  the  charge.  If  the  evidence  would  show  him 
guilty  of  substantially  another,  although  very  similar, 
crime  than  the  one  he  is  indicted  for,  the  judge  could 
not  pass  sentence  upon  him  for  this  crime  without  a  new 
charge  and  trial.  3d.  The  affirmation  of  the  issue  must  be 
proved.  In  a  criminal  case,  therefore,  the  prosecution 
must  bear  the  burden  of  proof.  There  is  an  axiom,  how- 
ever, that  reus  excipiendo  fit  actor:  i.e.  defendant  must 
give  evidence  in  support  of  his  pleas.  From  the  curious 
rather  than  learned  disquisitions  of  older  commentators 
on  the  proof  of  a  negative  we  gather  the  simple  rule  that 
a  negative  pure  and  simple  admits  of  no  proof  whatever, 
whereas  a  so  called  pregnant  negative,  which  implies  an 
affirmative,  can  be  proved  indirectly  by  proving  the  im- 
plied affirmative.  4th.  What  is  evident  needs  no  proof. 
This  axiom  can  be  applied  only,  at  least  in  criminal  law, 
to  what  is  evident  in  law  {notorietas  Juris),  and  what  ac- 
cording to  Common  law  is  known  hy  judicial  notice  or 
recognition.  But  evidence  of  fact  {notorietas  facti)  ad- 
mits of  proof.  Under  this  fourth  rule  come  a  great 
many  cases  covered  by  another  canonical  rule :  non  pro- 
bat  ur  cui  favet  praesumptio  juris 

54*.  Time  to  Introduce  Evidence  — The  general  rules 
of  Canon  law  are  few.  1st.  Evidence  cannot  be  offered 
before  the  judge  opens  the  case  by  hearing  the  charge  of 
the  prosecutor  and  the  answer  of  defendant  {contestatio 
delicti).     This  rule  does  not  apply  when   the  court   pro- 


96  Forms  and  Parts  of  the  Procedure. 

ceeds  either  summarily  or  by  inquisition.  2d.  No  evi- 
dence will  be  admitted  after  the  conclusion.  This, 
iiowever,  does  not  hold  in  matrimonial  and  more  impor- 
tant criminal  cases.  Evidence  may  sometimes  be  ad- 
mitted after  the  conclusion  at  the  discretion  of  the  court; 
but  if  a  peremptory  term  has  been  fixed  by  the  court 
for  the  purpose,  no  further  evidence  can  be  admitted 
after  the  lapse  of  that  term. 

55*.  Entry  of  Evidence. — Evidence  must  be  given  to 
the  court  (j'udici),  that  is,  to  the  judge  or  a  person  com- 
missioned by  him  to  receive  or  collect  evidence,  e.g.  the 
auditor  or  even  the  clerk.  All  the  evidence  given  must 
be  carefully  and  truly  recorded  by  him  who  receives  it  or 
by  his  clerk,  documents  by  the  noting,  parol  evidence  by 
his  minutes,  etc.  Evidence  not  given  to  the  court  or  in 
court  is  no  evidence. 

Art.  II.   The  Confession. 

56*.  The  judicial  confession'  has  ever  been  the  regina 
probationum.  Especially  in  the  earlier  inquisitorial  pro- 
cedure every  conceivable  effort  was  made  to  obtain  a 
confession  from  the  accused.  But  now  no  kind  of  coer- 
cive means,  physical  or  moral,  is  employed  to  procure  it ; 
nay,  art.  24  leaves  it  doubtful  whether  or  not  the  accused 
should  be  forced,  where  that  is  still  possible,  to  appear 
before  the  court. 

The  examination  of  the  accused"^  follows  immediately 
aftcjr  his  appearance  in  court  [Instr.,  art.  25).  The  word- 
ing itself  of  the  article  shows  that  the  purpose  of  this 
examination  is  not  to  sustain  the  prosecution,  but  rather 
to  exculpate  the  defendant  if  possible.  Hence  the  audi- 
tor must  especially  here  be  on  his  guard  against  any  mere 

■  Cfr.  Commentators  in  1.  n.  tit.  18.  De  Confessis. 
*  Pierantonelli,  1    c,  n.  17  ;  Rota,  n.  698  sqq. 


Judicial  Evidence.  97 

prejudice  that  may  have  taken  root  in  his  mind  during 
the  preceding  inquiry.  He  must  not  forget  that  he  is 
neither  prosecutor  nor  counsel,  but  an  impartial  inquirer 
after  truth  {ut  Veritas pateat).  The  author  well  remarks: 
"  He  must  take  care  not  to  appear  biassed,  much  less  to 
disclose  by  the  manner  of  examining  his  conviction  of 
defendant's  guilt.  Even  if  he  were  convinced,  he  ought 
still  to  discharge  his  unpleasant  duty  in  a  generous,  re- 
spectful and  gentle  manner  towards  his  erring  brother. 
It  is  only  thus  that  the  accused,  if  guilty,  will  acknowl- 
edge his  fault  at  once;  it  certainly  is  the  only  way  to 
get,  not  a  one-sided,  but  a  full  and  impartial  view  of  the 
whole  case." 

The  questions  or  interrogatories  to  be  put  to  the 
accused  may  be  divided  into  general  and  special,  as  in 
the  examination  of  witnesses.  The  special  questions 
must  be,  at  least  in  some  respect,  relevant  and  material 
to  the  issue.  Yet  no  leading  or  suggestive  questions  are 
allowed.  Even  when  inquiring  about  particular  circum- 
stances or  details,  the  question  must  be  put  in  such  a 
way  that  the  accused  is  not  thereby  forced  or  unavoid- 
ably led  to  directly  commit  himself.  Leading  questions, 
however,  are  allowed  if  the  auditor  has  already  manifest 
proofs  of  the  defendant's  guilt.  According  to  the  Acta 
S.  S.y  XV.  p.  391  sq.,  the  auditor  in  examining  ought  to 
follow  the  order  as  given  by  the  charge  or  the  nature  of 
the  case.  He  should  carefully  avoid  passing  suddenly 
from  one  subject  to  another  only  to  return  as  unexpect- 
edly ;  this  manner  of  questioning  is  mere  trickery  and 
a  snare  even  for  the  innocent.  Again,  his  interrogatories 
should  be  short  and  simple,  and  no  one  question  should 
include  things,  to  be  asked  severally  and  separately. 
Moreover,  it  is  advisable  to  begin  with  more  general  and 
lighter  matter,  and  gradually  come  to  special  and  more 
important  points,  which  may  give  nearer  and  more  seri- 


gS  Forms  and  Parts  of  the  Procedure. 

ous  indications  of  the  crime.  If  the  accused  refuse  to 
answer  a  legitimate  question  it  does  not  amount  to  an 
admission,  but  will  assuredly  create  a  suspicion  of  his 
guilt.'  Finally,  the  auditor  should  exercise  great  charity 
and  never  lose  patience  with  the  accused. 

57.  The  accused  cannot  be  compelled,  like  other  wit- 
nesses, to  take  the  oath  to  tell  the  truth  {jiiramentum  de 
veritate  dicenda).  This  practice,  formerly  much  used, — or 
rather  abused, — was  abolished  by  Pope  Benedict  XIII. 
at  the  Council  of  Rome,  1725;*  the  same  Pope,  how- 
ever, declared  it  admissible  when  defendant  is  to  con- 
firm the  truth  of  his  statements  concerning  accomplices. 
But  if  he  should  upon  the  judge's  request  have  taken 
such  an  oath  for  the  statements  concerning  himself,  the 
whole  proceeding  and  the  sentence  based  thereon  would 
\iQ  ipso  jure  vo'xdi.  The  auditor  and  the  judge  must  be 
content  with  admonishing  the  accused  to  speak  the 
truth.* 

58*.  The  conifession  is  either  judicial  or  extrajudicial.  It 
is  judicial  when  made  before  the  competent  judge  while  in 
court.  In  court  means,  at  least  in  a  mere  summary  pro- 
ceeding, in  his  official  capacity  as  judge,  but  does  not  re- 
fer to  the  place  where  the  trial  or  examination  gener- 
ally occurs.  In  this  sense  both  conditions  are  necessary. 
Hence  a  confession  made  to  the  competent  judge  but  not 
in  court  is  extrajudicial  ;  the  same  must  be  said  if  made 
in  court  yet  not  to  the  competent  judge  but  only,  say,  to 
the  prosecutor  or  the  clerk.  Canon  law  on  this  point  is 
stricter  than  Common  law. 

In  regard  to  the  question,  when  is  a  confession  evi- 
dence in  law,  one  must  very  carefully  distinguish  between 

'  S.  C.  6  Sept.  1713.     AJP..  xin.  29,  94;  Acta  S.S.,  xv.  392. 
'  The  decree  is  given  in  the  Coll.  Laccnsis  Cone.  Rec,  I.  364. 
'  Notification,  24  Apr.  1728.   AJP.,  xui.  48  f.,  91  f . ;  xiv.  972,  39;  XX. 
449.  I. 


Judicial  Evidence.  99 

civil  and  criminal  trial.  We  speak  of  the  latter  only.  In 
this  case  an  extrajudicial  confession  is  no  proof  whatever, 
not  even  semi-proof.  The  conviction  of  a  criminal  must 
be,  as  the  canons  say,  by  evidence  clearer  than  sunshine 
{probationibus  luce  meridiana  clarioribus).  Such  a  con- 
fession, when  properly  brought  before,  and  proved  to, 
the  court  will  make  at  most  presumptive  evidence,  or 
furnish  grounds  for  special  inquiry. 

A  judicial  confession  in  order  to  be  full  proof  in  court, 
must  have  certain  qualities  expressed  by  the  Gloss  in  the 
following  verse : 

Major,  sponte,  sciens,  contra  se,  ubi  jus  fit,  et  kostisj 
Cerium,  Usque:  favor,  jus  nee  natura  repugnet. 

Major,  that  is,  one  considered  of  full  age  by  the  law. 
Sponte,  freely,  not  by  force,  threats,  fraudulent  promises 
or  inducements,  even  if  offered  by  the  judge.  Sciens, 
with  clear  and  full  knowledge,  and  without  error  in  fact. 
Hence  a  confession  made  on  the  impulse  of  passion  or 
great  provocation  would  not  be  proof,  except  it  be  con- 
firmed  by  the  accused  after  the  passion  has  passed  away. 
Contra  se.  This  in  a  criminal  case  can  refer  only  to  the 
qualification  in  a  so-called  qualified  confession.  The 
confession  will  always  be  against  the  defendant,  but  the 
qualification  will  generally  be  some  circumstance  in  his 
favor,  e.g.  that  he  committed  the  delict  without  proper 
advertence  or  deliberation,  or  in  ignorance  of  the  law, 
or  on  a  necessary  occasion.  A  qualified  criminal  con- 
fession is,  according  to  canonists,  divisible.  Wiiilc  accept- 
ing the  confession,  the  judge  will  refuse  the  qualification 
favorable  to  defendant  until  the  truth  of  it  shall  have  been 
established.  This  condition  implies,  moreover,  that  the 
confession  shall  not  be  proof  against  any  of  his  accom- 
plices, but  only  against  him.sclf.      There   arc,  however, 


loo  Forms  andParts  of  the  Procedure. 

some  exceptions  to  tl.is  rule,  inasmuch  as  Canon  law 
admits  a  criminal  confession  and  testimony  against  his 
accomplices  in  the  following  cases:  ist,  in  exceptional 
crimes;'  2d,  in  occult  cases  when,  on  account  of  the 
nature  of  the  crime  or  circumstances,  it  is  difficult  to  ob- 
tain evidence  in  court  ;  3d,  in  crimes  which  by  their  very 
nature  cannot  be  committed  without  one  or  more  accom- 
plices; 4th,  in  crimes  the  final  execution  of  which  is  still 
left  to  the  accomplices;  5th,  in  any  other  crimes,  if  the 
confession,  i.e.  the  testimony  of  the  accused  against  his 
accomplices  be  supported  by  other  evidence  given  in  the 
case.  The  bare  confession  of  the  accused  as  a  rule  is  no 
evidence,  not  even  against  his  accomplices,  according  to 
the  Gloss  :  ''Nulli  ergo  de  se  confesso,  super  crimine  alioriim 
creditiiry  Ubijiis  fit  means  in  court  to  the  judge.  Et 
hostis,  in  presence  of  plaintiff  or  prosecutor,  a  condition 
required  only  in  Civil,  not  in  Canon  law.  Cerium,  the 
confession  must  be  clear  and  definite;  an  ambiguous,  un- 
certain and  vague  confession  is  null.  Lisque,  it  must 
be  on. the  matter  at  issue,  on  the  crime  of  which  he  is  ac- 
cused ;  not  on  foreign  matter,  even  if  that  were  another 
crime.  As  to  the  last  three  conditions,  it  is  impossible  to 
explain  briefly  the  meaning  of  the  phrase  '^  favor  non  re- 
ptignety     With  reference  to  a  criminal  confession,  how- 

'  Exceptional  crimes  {crimina  cxceptd)  are  those  of  a  more  pernicious 
character,  being  in  effect  directly  injurious  to,  and  destructive  of,  the  foun- 
dations of  society  whether  ecclesiastical  or  civil.  Hence,  in  order  the 
more  promptly  and  effectively  to  save  the  public  welfare  against  such  at- 
tacks and  the  sooner  to  convict  the  criminal,  the  courts  in  trying  those 
crimes  were  not  bound  to  observe  all  the  formalities  and  rules  of  a  crim- 
inal procedure.  And  because  of  these  exceptions  from  the  regular  pro- 
ceeding the  crimes  were  themselves  called  exrepta  (for  which  term  we  are 
unable  to  find  a  better  English  equivalent  than  exceptional).  Among 
these  crimes  the  commentators  generally  enumerate  treason,  forgery 
either  of  money  or  public  documents,  highway  robbery,  assassination  ; 
then  heresy,  simony,  sacrilege,  sorcery,  etc.  Cfr.  Rciffenstuel,  1.  n.  tit. 
18,  n.  99  ff. 


Judicial  Evidence.  i  o  i 

ever,  it  is  not  at  all  pertinent.  This  may  also  be  said  of 
the  other  two,  which  simply  mean  that  the  confession 
must  not  imply  what  is  impossible  either  in  the  nature 
of  things  or  at  least  by  law. 

59*.  What  is  the  effect  of  a  valid  judicial  confession  ? 
It  is  manifold.  First,  such  a  confession  is  full  proof  of  the 
charge  and  makes  any  further  evidence  unnecessary,  be- 
cause it  renders  the  delict  notorious  de  jure.  All  that 
remains  for  the  judge  is  to  satisfy  himself  that  the  con- 
fession is  valid,  i.e.  has  all  the  necessary  qualities,  and 
then  pronounce  sentence.  Secondly,  it  renders  valid  any 
previous  defective  proceeding.  Thirdly,  if  made  after 
defendant  has  already  been  convicted,  it  deprives  him 
of  the  right  to  appeal.  May  defendant  recall  his  confes- 
sion? Yes,  if  he  does  so  in  a  continent  proceeding,  in 
continenti,  as  the  phrase  is,  i.e.  during  the  same  examina- 
tion or  hearing,  but  not  after  an  interruption. 

Is  defendant,  if  guilty,  bound  to  confess  it  when  law- 
fully asked  by  the  judge  ?  We  limit  the  question  strictly 
to  our  subject,  the  canonical  trial  of  a  cleric,  and  answer 
in  the  affirmative  without  any  exception.  Cfr.  Konings, 
Theol.  Mor.  n.  1072.  The  plea  of  "not  guilty"  in 
American  law,  with  the  mental  restriction  "  because  not 
convicted"  or  the  like,  is  not  admitted  as  yet  by  any 
canonical  statute.  The  case  of  capital  punishment,  im- 
prisonment for  life,  or  deportation,  in  which  some  famous 
canonists  and  moralists  allow  defendant,  not  to  lie,  but  to 
evade  a  direct  confession,  has  no  application  in  ecclesi- 
astical courts. 

Art.  III.   Testimony  of  Witnesses. 

60*.  Among  evidence  strictly  so  called,  the  testimony 
of  witnesses  holds  the  first  place.  The  importance  of  the 
matter  explains  why  Canon  law  no  less  than  Civil  and 


I02         For 7ns  and  Parts  of  the  Procedure. 

Common  law  embodies  so  many  rules  concerning  such 
evidence,  and  why  canonists  have  written  such  extensive 
commentaries  on  these  titles  of  the  Corpus  Juris?  For 
our  purpose,  and  confining  ourselves  as  far  as  possible  to 
the  criminal  trial,  we  shall  divide  the  whole  complex  mat- 
ter into  five  parts;  viz.  on  the  competency,  the  authority, 
the  attendance,  the  examination  of  witnesses,  and  the 
publication  of  their  testimony. 

I.  The  Competency  of  Witnesses. 

Although  writers  on  Common  law^  distinguish  between 
competency  and  credibility  of  witnesses,  yet  we  include 
the  second  in  the  first.  A  witness  is  admissible  in  the 
court  (competent)  only  on  the  supposition  of  his  credi. 
bility.  The  contrary  were  absurd.  Hence  we  understand 
by  competency  the  legal  fitness  and  ability  of  a  witness 
to  be  heard  and  believed  on  the  trial  of  a  cause.  His  testi- 
mony, if  it  turn  out  to  be  quite  improbable  and  incredi- 
ble whether  in  itself  or  compared  with  contrary  testimony, 
becomes  also  incompetent,  i.e.  of  no  value  in  the  cause. 
As  the  whole  object  of  testimony  is  to  testify  to  fact 
(not  law),  the  law  can  recognize  only  him  as  a  competent 
witness  whom  it  supposes  to  kiioiv  the  fact  and  willing 
truthfully  to  state  it.  To  these  two  qualifications  all  the 
rules  of  law  on  the  competency  of  witnesses  can  be  re- 
duced, and  it  will  be  easily  perceived  that  incompetency 
on  the  grounds  of  natural  law  refers  mainly  to  the  first 
qualification,  while  incompetency  established  by  positive 
law  refers  rather  to  the  second.  This,  again,  explains 
why  the  one  kind  is  absolute,  no  matter  whether  the  trial 
be  civil  or  criminal,  whether  the  witness  be  for  the  de- 

'  L.  I.  tit.   20,  21.     For  a  practical  illustration  of  some  of  the  legal 
questions  see  the  Causa  Mediolan.  18S4,  in  Acta  S.  S.,  xviii.  64  ff. 
*  Bouvier,  s.  v.  Competency. 


Judicial  Evidence.  103 

fence  or  the  prosecution,  while  the  other  is  only  relative 
according  as  the  law  considers  the  witness  under  certain 
conditions  willing  to  state  the  truth  or  not. 

a.  By  natural  law  all  those  are  incompetent  witnesses 
who  are  deprived  of  the  right  exercise  of  their  reason  or  of 
their  senses  either  at  the  time  when  they  testify  or  at  the 
time  of  the  fact  to  which  they  are  to  testify.  The  one 
prevents  them  from  perceiving  the  fact ;  the  other,  from 
correctly  stating  it.  To  this  class  therefore  belong  in- 
fants, idiots,  lunatics,  and  intoxicated  persons;  then  the 
blind,  the  deaf,  and  the  dumb  in  regard  to  the  sense  of 
which  they  are  deprived. 

b.  By  positive  law  some  are  absolutely  incompetent ; 
thus  on  account  of  age  impuberals,  i.e.  children  above 
seven  but  not  yet  fourteen  (boys)  or  twelve  (girls)  ;  again, 
slaves,  on  account  of  their  condition  ;  paupers,  because 
suspect  of  being  bribed '  by  the  party  producing  them. 
A  large  class  of  witnesses  are  incompetent  because  of 
the  law  excluding  infamous  {infames)  persons  whether 
they  be  such  bylaw  {inf. Juris)  or  in  fact  {inf. fact i). 
Of  the  first  class  are  those  whom  the  law  itself  deprives 
of  their  honor  and  political  right  on  account  of  crime  of 
which  they  are  guilty  or  judicially  accused.  Infamous  in 
fact  are  those  who  on  account  of  the  crime  committed 
by  them  lost  their  honor  and  good  reputation  in  the 
opinion  of  good  and  honest  people,  although  no  statute 
brands  them  with  infamy.'  Infamy  in  fact  will  be  re- 
moved by  manifest  repentance  and  amendment,  by  an 
honest  and  becoming  life  for  a  longer  period ;  but  infamy 

'  Gloss  :  quod  lucri  gratia  quid  facile  admittat,  quoting  Prov.  XXX.  g 
Yet  Canonists  also  had  an  axiom  :  tnagis  creditur  virtuoso  pauperi  quam 
dixnti  vitioso.  Hence  if  the  pauper  established  his  honest  character  to  the 
satisfaction  of  the  court,  he  was  admitted  as  witness. 

*  See  a  detailed  exposition  in  Reiffenstuel,  h.  t.  n.  29  IT. ;  Sanli,  h.  t. 
n.  4  (!. 


I04         Forms  and  Parts  of  the  Procedure. 

by  law  can  be  removed  by  the  law  only  ;  i.e.  by  a  posi- 
tive and  authoritative  declaration  {abotitio,  dispensatio). 

Persons  excommunicated  and  to  be  avoided  {vitandi) 
are  also  incompetent.  Those  who  are  tolerated,  although 
publicly  known  to  be  excommunicated,  are  also  incom- 
petent if  objected  to  by  the  opposite  party. 

6i*.  Relatively  incompetent  are  those  witnesses  who 
may  testify  in  some  but  not  in  all  cases.*  Some,  agam,  may 
be  admitted  for  the  defence  but  not  for  the  prosecution, 
or  vice  versa.  According  to  Canon  law  the  following  per- 
sons cannot  testify  in  a  criminal  case :  minors  under 
twenty  years;  women,  if  the  procedure  be  accusatorial; 
persons  directly  interested  in  the  result  of  a  suit.  Per- 
sons cannot  testify  against  those  whom  they  bitterly  hate, 
nor  against  their  near  relations  by  blood  or  marriage. 
Jew  or  Pagan  shall  not  bear  witness  against  a  Christian, 
nor  heretics  against  those  of  the  fold,  nor  as  a  rule  lay- 
man against  cleric,  nor  clerics  or  religious  persons 
against  others  in  causa  sanguinis,  i.e.  where,  in  case  of 
conviction,  sentence  will  be  for  death  or  cruel  mutilation. 
But  neither  sex,  nor  clerical  orders,  nor  religious  profes- 
sion, nor  near  relationship  by  blood  or  marriage  can  ren- 
der a  witness  in  a  criminal  suit  incompetent  for  the  de- 
fence. 

There  is  one  more  class  of  persons  who  may  be  called 
in  a  sense  incompetent ;  viz.  those  who  are  privileged  and 
cannot  be  called,  much  less  compelled,  to  testify.  See 
below,  n.  66. 

In  regard  to  incompetent  witnesses  two  important  ob- 
servations are  still  to  be  made.  First,  the  judge  is  not 
forbidden  to  hear  their  testimony  in  court,  only  he  must 

'  Bouvier,  s.  v.  Witness:  "  The  testimony  of  such  as  are  generally 
qualified  and  competent  under  other  circumstances  or  as  to  other  matters 
is  something  excluded  out  of  regard  for  their  special  relations  to  the  cause 
in  issue  or  the  parties,  or  from  some  other  circumstances  not  working 
a  general  disqualification." 


Judicial  Evidence.  1 05 

not  allow  it  to  influence  his  judgment.  For  such  testi- 
mony is  not  legal  evidence,  nOr  can  any  sentence  be  based 
on  it  without  becoming  eo  ipso  void  ;  yet  it  may  give  the 
judge  some  clues  and  hints  to  guide  him  in  the  further 
inquiry.*  Second,  incompetent  witnesses  must  be  ad- 
mitted in  the  trial  of  exceptional  and  of  notorious  crimes, 
also  in  cases  where  competent  testimony  cannot  be  had ; 
e.g.  seduction  or  solicitation  of  a  child.  However,  their 
evidence  will  not  be  full  proof,  except  when  supported 
by  other  evidence. 

2.  The  Authority  or  Weight  of  Testimony.' 

62*.  In  weighing  the  evidence  given  by  witnesses  the 
judge  must  consider  three  things:  first,  the  credibility  of 
the  witness ;  second,  the  strength  of  his  testimony  when 
compared  with  that  of  other  witnesses  ;  third,  the  quality 
of  the  deposition. 

With  regard  to  the  first,  we  remarked  in  the  pre- 
ceding paragraph  that  incompetent  witnesses  could  give 
no  proof,  not  even  half-proof,  but  at  most  so-called 
indicia  or  conjectures.  Even  in  cases  where  the  law  ad- 
mits their  testimony,  it  amounts  only  to  the  force  of  a 
presumption.  Full  proof  is  supplied  only  by  competent 
witnesses.  These  are  sometimes  called  classical  witnesses, 
and  again  omni  exceptione  majores,  beyond  all  exception, 

•  Our  author  says  on  this  point:  "  If  the  judge  is  disposed  to  consider 
witnesses  as  classical  who  are  not  such,  the  accused  may  enter  an  excep- 
tion thereto.  Should  the  judge  administer  the  oath  to  witnesses  who 
ought  not  to  be  sworn,  he  is  himself  responsible  therefor.  But  there  is 
no  objection  against  examining  non-classical  witnesses,  though  their 
testimony  is  not  perfectly  valid  ;  for  it  may  furnish  the  judge  with  facts 
leading  to  the  discovery  of  fully  competent  witnesses,  or  may  serve  him 
as  circumstantial  evidence  ;  but  what  weight  he  may  accord  to  the  testi- 
mony of  non  classical  witnesses  in  a  particular  case,  be  must  himself  care- 
fully consider." 

»  Cfr.  Roia.  n.  672  ff. 


1 06         Forms  and  Parts  of  the  Procedure. 

which  does  not  mean  that  no  exception  has  been  made 
against  them,  but  that  if  made  it  has  not  been  sustained 
by  the  court. 

Now,  it  is  the  general  rule  of  Canon  law  that  in  civil 
as  well  as  criminal  trials  the  concurrent  testimony  of  two 
classical  witnesses,  neither  more  nor  less,  is  required  to 
give  judgment  accordingly.  Hence  the  axiom :  testis 
unus,  testis  nullus  ;  or  again,  dictum  unius,  dictum  nullius.^ 
There  were  some  exceptions  to  this  rule  in  cases  against 
bishops  or  clerics,  but  modern  canonists  agree  that  those 
ancient  laws  have  gone  into  desuetude,  and  that  it  is  now 
left  to  the  discretion  of  the  court  to  determine  in  any 
particular  case  whether,  and  how  many,  more  than  two 
witnesses  shall  be  required  for  the  prosecution  before  it 
can  conscientiously  give  sentence  against  the  accused. 

63*.  In  weighing  and  sifting  the  depositions  made  by 
several  witnesses  to  determine  their  relative  force  upon 
the  issue,  lies  one  of  the  gravest  and  most  difificult  duties 
of  the  judge.  All  are  agreed  that  no  special  rules  can  be 
laid  down  for  him  in  this  matter.  He  must  judge  of  the 
evidence  according  to  his  own  knowledge  and  sense  of 
duty.  However,  a  few  general  rules  may  guide  him  in 
the  difficult  task.  The  depositions  of  witnesses,  whether 
on  the  one  side  only  or  on  both,  will  either  differ  or  not. 
Witnesses  who  make  the  same  or  alike  depositions  are 
called  concordant  {testes  Concordes,  contestes)  ;  those  who 
differ  from  one  another  are  called  single  witnesses  (/. 
singulares).  In  view  of  three  possible  hypotheses  in  such 
a  case,  canonists  speak  of  conflicting,  variant,  and  admin- 
icular singularity  of  witnesses. 

When  the  different  depositions  cannot  be  explained 
because  one  necessarily  excludes  the  other,  their  evidence 
is  conflicting  {s.  coyitrarid).     Both  cannot  be  true.     Evi- 

'  This,  however,  does  not  apply  to  expert  witnesses.     See  below,  n.  70. 


Judicial  Evidence.  107 

dence  is  called  variant  {s.  diver st fie ativd)  when  there  is  no 
connection  whatever  or  mutual  relevancy  between  the 
several  depositions,  though  they  may  all  state  what  is 
true.  Hence  they  are  either  all  or  at  least  some  of  them 
altogether  irrelevant  to  the  issue,  and  therefore  inadmis- 
sible. Different  depositions  of  witnesses  furnish  admin- 
icular evidence  (j.  adminiculativa^  cumulativd)  when  they 
testify  to  different  facts  so  connected  with  one  another 
that  to  prove  one  is  to  prove  the  other.  It  is  clear  that 
this  connection  of  the  circumstances  or  the  facts  must  be 
first  established  before  such  depositions  can  be  called 
cumulative  evidence.  Single  testimony  would  give  half- 
proof  only,  while  full  proof  will  be  established  by  con- 
cordant testimony  for  the  different  circumstances  or 
facts. 

How  shall  the  judge  know  the  relative  value  of  conflict- 
ing evidence  furnished  by  witnesses?  When  is  it  equally 
strong?  and  if  not,  which  is  weightier?  and  when  is  that 
excess  of  weight  still  large  enough  either  by  itself  or 
together  with  other  evidence  to  cause  conviction  ?  No 
practical  answer  to  these  questions  can  be  given  here  ;  it 
lies  with  the  judge,  who  must  consider  not  merely  the  re- 
spective number  of  the  opposing  witnesses,  but  moreover 
their  intellectual  and  moral  qualities,  their  position  with 
regard  to  the  matter  at  issue,  and  the  qualities  of  their 
depositions. 

64*.  The  quality  of  a  deposition  may  refer  to  its  con- 
tents, and  to  the  manner  and  form  in  which  it  is  given. 

With  regard  to  the  first,  canonists  distinguish  four 
kinds  of  evidence,  viz.  evidence  of  personal  knowledge, 
of  opinion,  of  hearsay,  and  of  rumor.  The  first  is  that 
given  by  eye-witnesses  {testes  de  scientid)  and  is  the  only 
true  witness-evidence  ;  the  rest  are  not  evidence  of  the 
fact  at  issue  given  by  the  witnesses  themselves,  but  rather 
sources  opened  by  these  witnesses  from  which  other  evi- 


io8         Forms  and  Parts  of  the  Procedure. 

dence  on  the  issue  may  be  drawn,  such  as  rumor,  declara- 
tions, authenticated  documents,  circumstances,  and  facts 
estabHshed  by  expert  testimony,  etc. 

Evidetice  of  opinion  {t.  de  credulitate)  here  does  not 
mean  expert  opinion,  nor  a  lower  degree  of  the  mind's 
assent  to  its  own  judgment,  "  but  a  belief  held  as  the 
result  of  inference  and  not  of  direct  perception,"  '  Such 
evidence  is  of  no  more  weight  than  the  inferences  and 
conjectures  together  with  the  basis  upon  which  they 
rest.  Witness,  therefore,  must  be  examined  on  these 
points.  How  much  strength  may  accrue  to  an  opinion 
from  the  personal  qualities  of  the  witness,  is  left  for 
the  judge  to  consider."  Santi,  h.  t.  n.  30,  says  of  such 
evidence  of  opinion,  "that  if  such  opinion  is  supported 
by  good  reason,  although  it  may  not  give  a  full  proof,  yet 
it  will  be  quite  an  indication  of  the  truth  and  a  strong 
presumption." 

Hearsay  evidence {t.  de  aiiditic)  is  not  admissible  in  court 
except  when  higher  and  better  evidence  cannot  be  had. 
The  reason  is  obvious.  Such  depositions  contain  only 
statements  and  declarations  made  by  others  than  the  wit- 
ness himself,  consequently  by  persons  whom  as  yet  the 
court  knows  not.  Declarations  and  statements  thus  offered 
carry  no  more  weight  than  they  derive  from  their  authors 
and  the  circumstances  under  which  they  were  made. 
Such  evidence  is  second-hand  only  and  cannot  be  worth 
more  than  the  original.     Hence,  where  there  are  several 

'  E,  Robertson,  in  Eneycl.  Brit. is.  v.  Evidence 

*  Mr.  Robertson,  1.  c. ,  having  stated  that  in  Common  law  evidence  of 
mere  opinion  is,  as  a  rule,  not  admissible  at  all,  very  truly  observes:  "  In 
thus  excluding  opinion  on  all  but  technical  subjects,  the  law  is  stricter  than 
the  logic  of  ordinary  life.  The  opinion  of  others  tells  for  something  in 
the  formation  of  our  own  opinions,  and  no  doubt  ought  to  tell  for  some- 
thing." Query  :  Is  not  this  a  principle  of  the  Catholic  doctrine  of  Pro- 
babilism,  or,  in  other  words,  of  that  Catholic  "  examination  of  the  in- 
fluence of  authority  in  matters  of  reasoning,"  as  Mr.  R.  says? 


Judicial  Evidence.  1 09 

hearsay  witnesses  the  judge  must  first  inquire  after  the 
author  of  the  original  statement.  Cases  are  not  unknown 
in  ecclesiastical  jurisprudence  where  an  amount  of  hearsay 
evidence  had  been  offered  in  court  against  a  defenceless 
cleric,  but  through  the  searching  efforts  of  a  conscientious 
judge  that  formidable  mass  of  witness  shrunk  down  to  the 
form  of  one  evil-tongued  woman.  Again,  hearsay  evi- 
dence must  not  be  accepted  when  the  declarant  himself 
can  be  brought  into  court ;  for  in  this  case  hearsay  evi- 
dence would  be  legally  suspect  and  therefore  worthless. 

Evidence  of  rumor  ^  as  given  by  witnesses  {t.  de  famd) 
means  their  depositions  in  regard  only  to  the  existence  or 
non-existence  of  a  rumor  relevant  to  the  issue,  the  origin, 
extent,  and  nature  of  such  public  report ;  but  their  testi- 
mony is  not  to  the  truth  or  falsehood  of  that  rumor. 
Where  rumor  cannot  be  traced  to  a  certain  origin  or  defi- 
nite  cause,  the  court  must  consider  it  as  idle  talk. 

Depositions  made  by  a  witness  in  the  course  of  a  trial 
may  be  consistent  or  not.  If  they  are,  it  is  in  favor  of  his 
credibility;  if  they  are  not,  they  must  either  conflict  with 
or  only  vary  from  one  another.  In  the  first  case,  if  wit- 
ness corrected  himself  in  the  same  continent  hearing,  the 
court  may  accept  his  correction  and  consider  his  first  as- 
sertion as  an  error  made  in  good  faith.  But  if  he  recall 
his  statement  only  after  other  transactions,  especially  after 
having  seen  the  party  producing  him,  or  if  he  do  not  offer 
any  explanation  of  his  conflicting  testimony,  he  will  be 
considered  as  suborned  or  at  any  rate  perjured  and  there- 
fore not  trustworthy  nor  competent.  If  his  depositions 
be  not  substantially  at  variance,  but  only  in  their  manner 
or  in  minor  circumstances,  and  if  he  can  satisfactorily  ex- 
plain the  variance,  the  prior  deposition  will  be  admitted 
as  evidence,  except   the    later  be    more  consistent  with 

>  Cfr.  Rfifffnstucl  h.  t.  §  xii. 


1 10         Forms  and  Parts  of  the  Procedure. 

other  evidence  known  to  the  court.  Doubtful,  uncertain, 
vague,  and  confused  testimony  is  no  evidence.  Be  it  re- 
membered, however,  that  a  witness  may  be  somewhat 
confused,  wavering  and  shaky  in  his  outer  manner, 
being  agitated  by  excitement,  while  yet  his  deposition 
may  be  quite  clear,  definite  and  firm,  and  make  good 
evidence. 

3.  Attendance  of  Witnesses. 

65*.  Under  this  head  we  shall,  as  far  as  our  purpose  re- 
quires, treat  of  the  citation,  compulsion  and  produc- 
tion of  witnesses.  The  citation  of  witnesses  is  abso- 
lutely required,  otherwise  their  depositions  cannot  be 
considered  as  evidence  of  the  court.*  If  a  witness  should 
offer  himself  of  his  own  accord,  the  auditor  might  send 
him  a  formal  summons  after  having  convinced  himself  of 
the  witness's  credibility.  It  would  be  advisable  to  have 
the  summons  signed  by  the  auditor  and  his  secretary. 
According  to  the  Instr.,  art.  14,  the  writ  is  to  be  served 
on  the  person  either  by  a  court  messenger  or  some  other 
qualified  person,  or  even  through  the  mail  by  regis- 
tered letter.  The  fact  of  its  having  been  duly  served 
should  be  recorded ;  so  also  should  the  refusal  of  witness 
to  obey  the  summons,  as  stated  in  art.  20.'  The  nature 
of  our  new  procedure  does  not  seem  to  call  for  any  par- 
ticular requisites  of  the  summons;  but  as  the  inquiry  is 
at  first  to  proceed  rather  without  the  knowledge  of  the 
accused,  it  will  be  enough  to  state  that  witness  is  officially 
requested  by  the  auditor,  rightly  appointed,  to  appear  at 
such  a  place  and  at  such  a  time,  or,  in  case  of  being  unable 
to  comply,  to  state  his  reasons.  Witnesses  produced  in 
court  either  by 'the  defence  or  the  prosecution  need  not 

'  Gloss:    Testimonium  a  non  citato  dictum  non  valet;  hujusmodi  enim 
testis  non  citatus  deponens  redditur  suspectus, 
*  Cfr.  Acta  S.  S.,  xv.  3S8. 


Judicial  Evidence.  1 1 1 

be  formally* summoned,  except  on  request;  it  is  enough 
to  state  the  fact  in  the  acts. 

Droste  observes  that  the  auditor  may  sometimes  find  it 
advisable  not  to  summon  a  witness  otherwise  compellable, 
but  instead  of  it  to  go  himself  to  such  person  in  order  to 
obtain  his  testimony  at  once  and  thus  prevent  any  collu- 
sion with  the  accused.  Such  proceeding,  too,  would  have 
to  be  recorded.  But  if  a  competent  witness  refuse  to 
obey  the  summons,  can  he  be  compelled  to  appear  and 
testify  in  court? 

66*.  On  the  compulsion  of  witnesses '  our  author  says : 
"According  to  Canon  law  the  witness  should  first  be 
admonished  to  appear  and  give  testimony.  If  he  decline 
he  must  make  known  and  satisfactorily  prove  his  reasons, 
the  same  holding  true  as  to  those  circumstances  which 
relieve  him  from  the  duty  of  taking  the  oath.  But  the 
court  will  decide  whether  his  reasons  are  sufficient  or  not. 
It  has  been  a  matter  of  great  discussion  with  canonists 
as  to  what  may  be  done,  if  the  witness  declines  without 
cause  to  testify  against  an  ecclesiastic.  For  a  time  they 
held  that  witnesses  could  not  be  compelled  to  testify  in 
criminal  trials;*  in  recent  times,  however,  they  incline  to 
hold  it  allowable  at  least  when  proof  cannot  be  supplied 
in  any  other  manner.*  The  proper  way  will  perhaps  be 
this :  the  judge  admonishes  the  witness,  if  indeed  he  has 
appeared,  to  give  his  testimony  ;  should  he  refuse  either 
to  appear  or  to  testify,  the  judge  will,  according  to  art.  20 
of  the  fjistructio,  make  a  note  of  it  in  the  acts  and  try  to 
supply  the  necessary  evidence  in  some  other  manner. 
According  to  the  rules  of  criminal  legal  interpretation 
this  art.  20  excludes,  in  our  view,  the  compulsion  of  wit- 

'  Cfr.  CommeHtators  in  1.  u.  lit.  21:  De  testibus  cogendis  vel  non. 
*  This  opinion  was  based  on  a  false  iDterpretatioa  of  an  incident  phrase 
of  Honorius  III.  (c.  10.  X.  h.  L). 
f  Cfr.  Craiston,  n.  5726. 


112         Forms  and  Parts  of  the  Procedure. 

nesses,  even  Catholics,  although  by  the  rules  oT  the  canons 
laymen  may  be  compelled  by  excommunication,  and  clerics 
by  suspension.  Our  opinion  becomes  the  more  apparent 
when  we  consider  that  the  Council  of  Trent  also  admon- 
ishes to  great  caution  in  applying  such  coercive  measures.' 
It  is  another  question,  indeed,  but  one  which  does  not 
belong  here,  whether  the  witness  is  bound  in  conscience 
to  testify  against  ecclesiastics'  in  criminal  causes.  This 
question  should  not  be  confounded  with  the  judicial  com- 
pulsion of  witnesses."  So  far  the  author,  with  whose 
opinion  the  Acta  S.  S.  seem  to  agree."  Santi*  observes 
that  in  regard  to  compelling  witnesses  one  must  not 
strictly  follow  Canon  law  taken  in  a  rigid  sense,  but  rather 
custom.*  We  need  not  observe,  however,  that,  any  cus- 
tom to  the  contrary  notwithstanding,  the  bishop  is  justi- 
fied in  compelling  by  ecclesiastical  censure  witnesses  to 
appear  and  testify,  if  the  importance  and  nature  of  the 
case  or  the  absence  of  other  evidence  make  it  necessary, 
of  which  necessity  he  alone  is  to  judge.  This  is  the  com- 
mon teaching  of  canonists  based  on  the  principles  often 
expressed  in  the  sacred  canons :  ne  pro  defectu  testium 
pereat  sua  justitia;  or  3i<ga.\x\yCum  publicae  utilitatis  inter  sit 
ne  crimina  juaneant  impiinita.  The  jurisprudence  of  the 
Church  as  well  as  the  State  held  it  to  be  a  public  duty 
which  every  member  owed  to  society,  to  give  faithful  wit- 
ness whenever  necessary.'     If  without  cause  hs  refuse  to 

'  Sess.  XXV.,  c.  3,  de  Ref. 

*  Even  if  not  compelled  lo  do  so. 

*  XV.  p.  389.  Read  ib.  the  very  nice  and  important  remark  concern- 
ing witnesses  who,  although  competent,  ought  not  to  be  called,  quia  non 
licet  aut  decet  eos  citare  (Cum  Magnop.,  art.  20), 

*  L.  n..  tit.  21,  n.  4. 

*  Cfr.  Rota,  n.  682. 

*  Axiom:  Officinm  testium  est  officium  publicum-.  A  Protestant  writer 
very  well  says:  '*  Where  the  witness  is  guilty  of  contumacy,  and  stands  in 
wilful  contempt  and  di.«:obedience  to  the  lawful  request  of  the  Church,  he 
maybe  arraigned,  tried  and  expelled,  which  would  be  nothing  but  jus- 


Judicial  Evidence.  1 1 3 

fulfil  that  9uty.  authority  will  and  must  compel  him.  On 
the  other  hand  Canon  law  no  less  than  Civil  and  Common 
law  recognizes  cases  where  the  compulsion  of  witnesses 
for  a  criminal  prosecution  would  be  immoral  and  unnatu- 
ral. Such  is  the  relation  between  parents  and  children/ 
husband  and  wife,  consanguinity  and  affinity  to  the  third 
degree  inclusively,  and  all  those  cases  where  on  the 
grounds  of  public  policy  a  person  is  bound  by  a  special 
duty  to  keep  secret  whatever  knowledge  he  obtained  in 
virtue  of  his  peculiar  relation  with  the  party  concerned. 
The  principle  that  confidential  communications  made  to 
a  person  in  his  professional  capacity  are  in  some  cases,  as 
e.g.  of  clergymen,  physicians,  counsellors,  and  attorneys, 
exempt  from  compulsory  testimony,  is  fully  recognized 
in  Canon  law.' 

These  and  the  foregoing  are  called  privileged  witnesses 
in  the  full  sense.*  In  a  wider  sense  those  also  are  called 
privileged  who  as  a  rule  will  not  be  compelled  to  appear 
in  court,  but  yet  must  make  their  deposition  to  an  au- 
thorized officer  of  the  court  (the  auditor  or  a  commissioner) 
either  at  home  or  wherever  it  may  be  convenient.  Such 
are  the  old,  the  sick,  the  poor,  and  often  women,  high 
dignitaries,  persons  kept  away  by  official  duty  or  the  com- 
mands of  their  superiors,  and  finally  those  living  at  too 
great  a  distance  or  under  another  jurisdiction.     By  an- 

tice  and  right  where  such  a  one  should  be  so  wilful  and  disregardful  of 
the  well-being  of  the  Church."     Henry-Harris. 

'  All  descendants  or  ascendants  in  the  direct  line. 

*  BalUrini,  in  his  note  to  Gury,  vol.  I.  n.  470,  says:  Bonum  commune 
postulat.  ut  ne  metu  rez'tlalionis  homines  priventur  commodo  consilii  aut 
auxilii  necessarii  quaerendi,  quod  tamen  quaererent  nunquam  nisi  cerii  de  se- 
treto  scrvando  forent.  Postulat  ergo  bonum  commune  ut  quousque  commit- 
ttns  licite  potest  suum  secretum  servare,  jus  retineat  ne  alter  illud  prodat. 
Cfr.  The  Month,  May  1883,  "  On  Privileged  Communications."  pp.  27  fT. 
Henry-Harris,  chapt.  VI.,  "The  Exclusion  of  Evidence  based  on  Pub- 
lic Policy." 

»  Cfr.  Rnffenstuel.  h.  t.  §  ii. 
8 


114         Forms  and  Parts  of  the  Procedure. 

alogy  the  above  provision  may  be  observed  with  those 
who  are  willing  to  testify  but  refuse  for  whatever  reason 
to  appear  in  court.'  If  witnesses  live  at  such  a  distance 
from  the  judge  or  auditor  as  to  render  their  examination 
considerably  difficult,  a  capable  cleric  Hving  in  their  neigh- 
borhood may  be  commissioned  to  take  their  depositions. 
When  witnesses  are  to  be  summoned  and  examined  who 
live  under  another  jurisdiction,  the  court  will  hy  letters 
rogatory  request  the  bishop  of  the  other  diocese  to  have  the 
witnesses  duly  examined  there  and  an  authenticated  re- 
port thereof  returned  {Instr.,  art.  19).  If  persons  in  the 
above  cases  were  to  offer  or  send  to  the  court  written 
statements  or  depositions,  although  duly  signed  by  their 
hands,  it  would  at  most  be  extrajudicial  evidence. 

Subtraction  or  concealment  of  witnesses  is  punishable 
also  in  Canon  law. 

^"j*.  Of  the  s.o-called  production  of  witness  little  need 
be  said,  whether  we  ask  hozv  many  witnesses  may  be 
brought  in  and  when,  or  how  often  the  same  may  testify. 
Our  procedure  being  summary  and  by  way  of  inquisition, 
it  is  mostly  in  the  power  of  the  judge  to  determine  the 
number  of  witnesses  to  be  allowed  for  the  prosecution  as 
well  as  the  defence  scrvatis  justitiae  regulis.  These  are 
mainly  two :  first,  to  allow  as  many  witnesses  as  are 
necessary  for  both  sides  to  establish  the  truth  of  the  mat- 
ter at  issue  ;  secondly,  not  to  allow  an  unnecessary  array 
of  witnesses,*  which  would  only  delay  the  decision,  confuse 
the  evidence,  annoy  and  vex  all  others  concerned  in  the 
trial,  and  increase  the  costs.  At  what  stage  of  the  trial 
may  witnesses  be  offered  to  the  court?  Regularly  this 
must  be  done  during  the  inquiry  or  informative  proceed- 
ing.    After  the  close  of  the  inquiry  {expleto  processu,  art. 

'  Instr.  1878.  art.  15,  Quodsi  nolint. 

*  VoUntes  effrenatam  multitudinem  testium  refrenari  (c.  37,  X.,  Ii.  20). 
Cfr.  Acta  S.  S.w..  406.  ' 


Judicial  Evidence.  115 

29)  or  during  the  final  pleading  (which,  according  to  the 
Cum  Magnop.,  art.  33,  is  not  parol  {LOrdinario,  arts.  33, 
34]  but  in  writing)  the  court,  in  our  opinion,  could  not 
allow  new  testimony  to  be  given,  except  it  be  satisfied 
that  the  new  witness  is  a  necessary  and  substantial  -one, 
and  has  not  before  been  known  as  such  to  the  party  pro- 
ducing him.  In  this  case  the  judge  could  demand  of  the 
producent  the  juramentum  malitiae,  an  oath  to  affirm 
that  he  produces  witness  in  good  faith,  not  with  fraudu- 
lent intent  or  through  chicanery.'  The  same  applies  in 
case  of  re-examining  a  witness  after  publication.  No 
more  than  three  terms  should  be  allowed  to  introduce 
new  witness.  How  many  times  may  the  same  witness 
be  "put  on  the  stand?  Canonists  distinguish  two  cases: 
the  witness  will  be  examined  either  on  the  same  matter 
and  points  as  before,  or  on  new  points.  In  the  latter 
case  he  may  be  called  to  testify  as  often  ^ as  required  or 
allowed  by  the  auditor.  In  the  former  he  may  be  re-ex- 
amined as  long  as  his  former  depositions  have  not  been 
made  known*  either  by  the  publication  of  the  inquest  or 
by  a  violation  of  the  secrecy  imposed  upon  the  witnesses. 
To  ofTer  a  witness  for  re-examination  after  his  depositions 
have  become  known,  makes  the  law  suspect  collusion  and 
subornation.  Cross-examination,  properly  so  called,  has 
no  place  in  Canon  law,  as  neither  the  prosecutor  nor  the 
attorney  examine  the  witnesses,  but  only  the  auditor  or 
the  judge  or  some  special  commissioner.  There  is,  how- 
ever, what  may  be  termed  the  quintessence  of  cross- 
examination,  inasmuch  as  the  accused  may  himself  or 
through  counsel   request   the  auditor  to  re-examine  the 

'  Praestilo  .  .  .  juramento  quod  .  .  .  nee  per  dolum  out  artem  aliquam 
qttartam  productionem  exposcat.  sed  quia  quos  desiderat  de  novo  producer/ 
prius  habere  nequivit.     c.  55,  X.,  \\.  20. 

*  This  is  what  the  phrase  quutn  nondum  testijicata  didicerint  (produ- 
cenles)  means,     c.  46.  X..  h.  t. 


1 16         Forms  and  Paints  of  the  Procedure. 

witnesses  before  as  well  as  after  the  publication  on  cer- 
tain points  either  of  the  issue,  or  of  witness's  competency, 
or  of  the  testimony  published. 

4.  Examination  of  Witnesses, 

68*.  "According  to  the  Instr.,  art.  18.  the  witness  who 
is  about  to  testify  must  be  sworn  {sub  j'uramento),  and 
that  regularly  before  giving  his  testimony;  to  confirm  by 
oath  the  depositions  already  made  is  allowable  only  when 
the  judge  was  in  doubt  whether  witness  could  be  sworn 
at  all,  or  for  some  other  good  reason.  But  if  witness 
should  refuse  to  take  that  oath  his  testimony  is  void." 
{Droste.) '  A  statement  not  sworn  to  is  no  evidence.  The 
oath  must  be  to  the  effect  that  witness  will  tell  (or  has 
told)  the  whole  truth  to  the  best  of  his  knowledge,  and 
nothing  else  {solam  et  totam  vcritatem^.  Hence  it  is 
called  in  law  'juratnentum  veritatis.  If  necessary,  the 
oath  may  also  contain  the  promise  of  secrecy  (/.  de  se- 
creto  servanda ;  art.  18).  This,  we  suppose,  will  generally 
be  the  case, — with  women  always;  by  the  very  nature  of 
the  inquisitorial  procedure  it  certainly  will  be  advisable 
in  all  cases.  The  oath  is  to  be  administered  by  the  audi- 
tor (commissioner),who  should  first  call  the  witness's  atten- 
tion to  this  duty  of  telling  the  truth,  and  to  the  nature 
and  binding  character  of  an  oath.     Rota,  n,  663. 

The  examination  of  witnesses  must  be  conducted  by 
the  auditor.  Even  if  after  the  close  of  the  informative 
proceeding  nevv  witness  is  to  be  heard,  it  is  generally 
done  by  the  auditor,  not  by  the  bishop  or  his  vicar- 
general.  According  to  some,  the  fiscal  procurator  may 
be  present." 

The  Instr.,  art.  17,"  orders  the  witnesses  always  to  be 

'  Axiom:  testis  nonjuratus  non probat. 
»  AJP..  XIV.  971.  35. 
»Cfr.  Instr.  1878,  art.  ii. 


I 


Judicial  Evidence.  1 1 7 

separately  examined,  otherwise  the  proceeding  is  void. 
Tills  certainly  implies  that  they  must  not  communicate 
to  one  another  either  the  interrogatories  or  their  depo- 
sitions before  the  publication  of  the  process.  It  will 
greatly  facilitate  matters,  if  the  auditor,  who  has  already 
from  the  charge  and  the  bishop's  preparatory  inquest 
some  knowledge  of  the  whole  case  and  the  persons  therein 
concerned,  will  prepare  for  his  private  use  a  schedule  of 
general  and  special  interrogatories.  They  should  be  as 
clear  as  possible  and  capable  of  a  definite  and  direct  an- 
swer. The  general  questions  are  on  the  name,  domicile 
or  residence,  condition  or  profession,  age  and  parentage 
of  the  witness.  "  In  order  to  test  the  witness's  accuracy, 
veracity,  credibility  and  competency,  he  may  be  exam- 
ined as  to  his  relations  to  either  of  the  parties  or  the 
subject-matter  in  dispute.  His  interest,  his  motives,  his 
way  of  life,  his  associations,  his  habits,  his  prejudices,  his 
physical  defects  and  infirmities,  his  mental  idiosyncrasies, 
if  they  affect  his  capacity;  his  means  of  knowledge  and 
powers  of  discernment,  memory  and  description,  may  all 
btf  relevant."  '  However,  great  discretion  and  tact  as 
well  as  charity,  must  guide  the  auditor  in  these  things. — 
TXx^  special  questions  must  refer  to  {.he  corpus  delicti,  th^ 
crime  or  charge ;  they  ought  all  to  be  material  and  rele- 
vant to  the  fact  at  issue.  Witness  may  first  state  in  con- 
tiniio  all  that  he  knows  about  it ;  then  he  must  be 
minutely  examined  on  his  own  depositions,  especially 
how,  by  what  means  and  ways,  he  came  to  that  knowl- 
edge. By  this  examination  the  auditor  must  ascertain 
how  much  of  the  testimony  is  of  personal  knowledge, 
or  of  hearsay  or  rumor,  or  of  mere  opinion  and  inference. 
Then  other  relevant  questions  may  be  put  as  to  circum- 
stances of  place,  time,  persons,  etc.,  not  yet  mentioned 
by  witness.  It  is  evident  that  these  special  interrogato- 
'  Bouvier,  s.  v.  Witness. 


1 1 8         Forms  and  Parts  of  the  Procedure. 

ries  will  be  quite  different  in  one  and  another  trial. 
There  is,  however,  a  rule  which  binds  under  sin  and  null- 
ity of  the  trial.  Leading  or  suggestive  questions  are  not 
allowed.^  They  are  those  "  which  put  into  the  witness's 
mouth  the  words  to  be  echoed  back,  or  plainly  suggest 
the  answer  which  the  party  wishes  to  get  from  him.  In 
that  case  the  examiner  is  said  to  lead  him  to  the  answer. 
It  is  not  always  easy  to  determine  what  is  or  is  not  a 
leading  question.  .  .  .  Questions  may  be  put  to  lead 
the  mind  of  the  witness  to  the  subject  of  inquiry,  and 
they  are  allowed  when  it  appears  the  witness  wishes  to 
conceal  the  truth  ...  or  where  from  the  nature  of  the 
case  the  mind  of  the  witness  cannot  be  directed  to  the 
subject  of  the  inquiry  without  a  particular  specification 
of  such  subject." "  This  holds  good  also  in  Canon  law. 
After  examination  the  depositions  of  witness  are  read  to 
him  or  by  him ;  if  he  wish  to  correct  some  statement,  he 
may  do  it  then,  but  not  afterwards.  He  will  then  sign 
his  name  to  the  depositions,  or,  if  unable  to  write,  he  will 
make  his  mark,  which  must  be  attested  by  the  clerk  or 
some  other  person.^  If  he  refuse  to  subscribe,  the  fact 
must  be  noted,  together  with  the  reason  of  it.  Finally 
the  record  must  be  signed  also  by  the  auditor  and  the 
clerk. 

'  Questiones  suggestivae  ac  fallaces.    Cfr.  Rota,  n.  667:  Santi,  h.  t.  n.  43. 

'  Bouvier,  s.  v.  Leading  Question. 

'  AJP..  XX.  88.  xxxviii.— "  Dopo  essere  steso  gli  si  torni  a  leggere, 
e  si  passi  in  fine  a  farglielo  sottoscrivere,  ovvero  in  caso  d'illeteratura 
segnare  colla  croce  alia  presenza  di  persona  ecclesiaslica,  o  di  altri  due 
teslimonj,"  etc.     Pius  VII.,  Post  Diuturnas,%  no. 


Judicial  Evidence,  119 

5.  Publication  of  Testimony. 

69*.  It  is  unnecessary  here  to  repeat  all  that  the  com- 
mentators had  to  say  on  the  conditions  and  solemnities 
required  for  the  publication  of  the  testimony.  This  pub- 
lication consists  in  making  known  to  defendant  the  names 
of  the  witnesses  and  their  respective  depositions.  Now 
this,  according  to  the  Instructio  (art.  32),  as  interpreted 
by  the  Council  of  Baltimore,  n.  314/  is  to  be  done  only 
after  the  closing  of  the  informative  proceeding.  When 
the  Instr.  says  that  for  a  full  discussion  of  the  issue  (art. 
26)  and  a  proper  defence  the  accused  should  know  all  the 
evidence  against  him  (art.  27),  it  merely  implies  that  the 
different  arguments  (art.  26,  coll.  29)  drawn  from  the 
testimony  and  other  evidence  to  prove  his  guilt,  must  be 
clearly  and  distinctly  set  before  him,  but  not  the  full  de- 
positions, much  less  the  names  of  the  witnesses.  All  this 
he  will  fully  know  when  either  himself  or  his  counsel  shall 
peruse  not  only  the  auditor's  brief  or  abstract  {rtstretto, 
art.  29),  but  also  the  whole  procis-verbal  {del  processo, 
art.  32)  of  all  the  preceding  transactions.  Here,  indeed, 
we  have  the  so  called  confrontation  of  witnesses  with  the 
accused,  which  is  considered  by  all  an  essential  requisite 
of  criminal  justice.'  "  We  distinguish,  however,"  .says  our 
author,  "  between  personal  and  verbal  confrontation.  By 
the  former  the  witnesses  are  personally  confronted  with 
the  accused  in  presence  of  the  judge,  and  there  obliged 
orally  to  repeat  their  testimony.*  In  ecclesiastical  courts 
this  takes  place  only  in  case  of  most  grievous  or  capital 
offences.*     Of    itself   it  is  not  an  essential  requisite  of 

'  The  phrase  publicato  processu,  in  this  n.  314,  was  explained   by  the 
Roman  reviser  in  the  parenthesis  "(i.e.  communicato  al difcnsore)." 
'  S.  C.  Epp.,  I  May  1851  ;  17  Dec.  1852.     AJP..  xiii.  50.  109  sq. 

*  They  may  in  such  case  even  be  cross-examined  in  the  manner  indi- 
cated by  Instr.  1S78,  art.  12. 

*  AJP..  xui.  50,  106;  XIV.  973,  41. 


1 20         Forms  and  Parts  of  the  Procedure. 

canonical  procedure ;  in  fact  it  is  nowhere  enjoined,  and 
generally  will  not  be  advisable.'  The  auditor  has  the 
discretional  power  to  order  it,  whenever  it  appears  nec- 
essary to  him ;  the  judge  can  never  order  it.'  But  the 
z/^r(^«/ confrontation  is  quite  indispensable  in  ecclesiastical 
criminal  procedure.  It  consists  in  this,  that  the  names 
of  the  witnesses  are  communicated  to  the  accused,  and 
their  testimony  either  read  to  him  or  laid  before  him  for 
his  inspection,  as  also  the  conclusions  drawn  therefrom 
by  the  fiscal  procurator  and  the  motions  made  thereon.* 
It  cannot  be  omitted,  nor  can  the  accused,  as  a  rule,  be 
represented  in  this  by  attorney,  except  his  personal  at- 
tendance be  impossible,  in  which  case  the  attorney  must 
have  a  special  mandate,  a  general  one  will  not  suflfice ; 
moreover,  the  verbal  confrontation  must,  if  possible, 
still  be  accorded  to  the  accused  himself."  *  Some  writ- 
ers seem  to  maintain  with  Rota,  n.  659,  715,  that  if 
defendant  do  not  expressly  acknowledge  the  testimony 
as  competent  and  lawful  evidence,  the  judge  is  bound 
not  only  to  allow  a  verbal  confrontation  but  even  to 
re-examine  the  witnesses  {iiecessario  repetendi  et  legiti- 
mandi  sunt)  whether  the  proceeding  be  summary  or 
not.  Others,  again,  would  throw  out  as  irrelevant  all 
the  testimony  gathered  during  the  inquest,  if  witnesses  ; 
be  not  again  sworn  in  presence  of  defendant  and  re- 
examined during  the  defensive  proceeding  although  it 
be  a  summary  trial.  These  opinions  we  consider  posi- 
tively false.    The  whole  tenor  of  the  histructio  is  against 

*  Acta  S.  S.,  XV.,  395 

*  S.  C.  Epp.,  4  Sept.  1834.  AJP.,  XX.  467,  XVI.— Whatever  the  meaning 
of  this  decree,  we  think  that  it  is  the  judge  more  than  the  auditor  who  can 
order  a  personal  confrontation.  What  Droste  probably  intended  to  say 
is  that  the  confrontation  should  take  place  before  the  auditor,  not  before 
the  judge  himself. 

*  AJP.,  XIV.  937,  40. 

*  S.  C.  Epp.,  26  March  1823.     AJP.,  xiii.  50,  108  ;  xx.  89,  xiii. 


Judicial  Evidence.  121 

them  and  rather  conveys  what  Pierantonelli^  unhesi- 
tatingly asserts  :  Verum  in  praeseiiii  Ecclcsiae  conditione 
non  solum  confrontatio  scd  ipsa  iiommis  testiutn  publi- 
catio  ut  plurimuui  impossibilis  est.  The  same  writer 
suggests  that  in  order  to  enable  defendant  to  challenge 
witnesses  for  the  prosecution,  it  is  enough  to  mention 
their  names  in  general  without  stating  what  each  one 
had  testified  {dentur  iiomina  testium  confiisa  et  separata  a 
dictis  testiutn).  If  the  interests  of  witness  should  demand 
it,  his  name  may  be  withheld  altogether.  A  full  publica- 
tion in  the  strict  and  rigorous  sense  of  the  law  is  not  nec- 
essary for  the  validity  of  the  trial,  as  long  as  the  substan- 
tial evidence  against  him  be  made  fully  known  to  de- 
fendant. From  this,  however,  we  draw  a  most  important 
conclusion  :  whenever  the  case  is  such  that  it  would  be 
inadvisable  to  publish  a  witness's  name,  it  becomes  an  ab- 
solute duty  of  the  court  to  inquire  very  closely  about  the 
competency  and  credibility  of  the  witness,  whether  he 
be  against  or  for  the  defence.  The  court  in  this  case 
must  by  anticipation  consider  whether  there  be  any  solid 
grounds  for  a  possible  challenge  of  such  witness. 

Art.  IV.  Miscellaneous  Evidence. 
I.  Expert  Opinion. 

70.  Closely  related  to  the  testimony  of  witnesses  is  the 
opinion  of  experts^  If  they  merely  testify  to  facts  as  ob- 
served by  them  they  are  simply  witnesses,  though  their 
testimony  would  be  especially  valuable,  their  observation 
having  been  made  with  an  expert  knowledge  of  the  mat- 
ter. They  may  be,  however,  especially  appointed  by  the 
ecclesiastical  judge  to  examine  certain  matters  and  to  give 
their  expert  opinion  thereon.     They  must    possess    the 

'Tit  5,  n.  32,  144.     The  Acta  S.  S.,  xv.,  395,  say  the  very  same. 
•  Reiffenstuel,  1.  n.  tit.  IQ,  n.  22;  Schmahgr.,  ib.  n.  20.     Santi,  tit.  20, 
n.  20.  calls  expert  witnesses  testes  qualificatos. 


122         Forms  and  Parts  of  the  Procedure. 

qualities  of  a  classical  witness  and,  moreover,  the  requisite 
special  knowledge,  and  must  be  sworn.'  Their  opinion  is 
given  in  writing  called  the  report.  If  they  are  orally  ex- 
amined they  must  sign  their  depositions.  The  accused 
has  under  certain  circumstances  the  right  to  decline  their 
testimony. 

To  make  the  matter  clearer  the  judicial  inspection  '  is 
often  of  advantage.  In  such  case  either  the  judge  repairs 
with  the  clerk  to  the  place  where  the  offence  was  com- 
mitted, or  he  orders  portable  things,  instruments,  etc.,  to 
be  produced  before  him.  He  may  also  get  information 
by  an  extrajudicial  personal  inspection  ;  no  clerk  is  then 
required.  Such  an  extrajudicial  information  will  often 
give  a  far  better  insight  into  the  whole  case. 

2.   Written  Evidence. 

71.  Evidence  in  a  criminal  trial  is  frequently  supplied 
by  means  of  documents.'     Persons  who  are  in    posses- 

'  Cod.  Just  :  "duobus  insi^nibus  mechanicis  et  architectis  .  .  .  ss. 
evangeliis  positis  definiantur  ab  architectis." 

*  Commentators  in  1.  Ii.  tit.  19. 

*  Commentators  in  1.  H.  tit.  22.  De  fide  instrumentorum.  Rota,  n. 
693  ff  ;  Smith,  n.  863  ff  ;  Henry-Harris,  part  iv.  Written  evidence  is 
also  called  documentary.  "  A  document  in  this  sense  extends  to  any 
record  whether  expressed  in  writing  or  symbols,  and  no  matter  what 
may  be  the  nature  of  the  substance  on  which  it  is  recorded.  A  gold 
watch  with  an  inscription  on  it,  or  a  tombstone,  is  a  document "  {Robert- 
son, 1.  c).  This  remark  holds  also  in  Canon  law.  S^e  Reiffcnstuel,  h.  t. , 
de  sculpturis,  n.  221  ff.  There  is  some  difference  among  writers  in  using 
the  terms  public  and  private,  authentic  and  genuine  writing.  Authentic 
means  authoritative  ;  i.e.,  a  writing  the  contents  of  which  are  reliable 
and  trustworthy,  while  genuine  means  that  it  is  the  same  as  written  by  its 
author,  not  spurious,  forged,  or  corrupted.  A  document  may  therefore 
be  genuine  without  being  authentic.  Public  writings  are  those  executed 
by  public  authority.  Hence  documents  referring  to  private  affairs  are 
public  writings,  if  executed  by  an  official  person  recognized  as  such  by 
the  public  authorities.  Private  is  any  writing  executed  by  a  person  in 
his  private  capacity.     It  may  now  be  easily  understood  that  all  public 


k 


Judicial  Evidence.  123 

sion  of  such  documents  must  therefore,  upon  a  demand 
by  the  court,  deliver  them,  but  the  duty  of  the  accused 
to  produce  documents  extends  no  further  than  that  to 
testify  ;  he  is  therefore  not  obliged  to  deliver  documents 
which  maybe  evidence  against  him.' 

For  a  document  to  serve  as  evidence,  we  must  first 
examine  whether  it  is  genuine  and  authentic.  Public 
documents  must  accordingly  bear  the  name  and  title 
of  the  official  issuing  them,  as  well  as  his  official  seal. 
Private  documents  should  be  written  in  the  presence 
of  and  subscribed  by  at  least  three  witnesses  who  can 
write  {testes  instrumentarii).  If  the  document  bears 
the  external  marks  of  authenticity,  the  further  ques- 
tion arises  whether  it  is  really  genuine.  The  genuine- 
ness will,  however,  be  presumed  until  called  in  ques- 
tion, when  it  must  be  proved  either  by  the  testimony 
of  those  who  have  signed  it,  or,  if  that  is  impossible, 
by  a  comparison  with  other  documents,  and  if  neces- 
sary by  the  opinion  of  experts.  But  to  establish  the 
authenticity  of  documents  through  witnesses  and  ex- 
perts, the  judge  must  act  with  the  greatest  circumspec- 
tion. He  must  first  ascertain  whether  the  witness  or 
expert  is  acquainted  with  the  person  whose  instrument 
the  writing  is  said  to  be,  whether  he  has  been  in  corre- 
spondence with  him  or  only  accidentally  saw  his  hand- 
writing, whether  he  knows  it  well  and  could  now  recog- 
nize it.  He  must  then  place  that  document  among 
others  of  different  authors,  cover  the  signatures,  and  re- 
quest the  witness  or  expert,  who  professes  to  know  the 
handwriting  of  the  author  in  question,  to  pick  it  out.     It 

writings  are  authentic,  and  not  vice  versa ;  and,  again,  that  a  copy 
(fxemplum)  of  a  public  document  must  be  duly  authenticated  to  become 
itself  public  and  authentic. 

•  Except  when  they  concern  the  rights  of  another  party.  Cfr.  Santi, 
h.  I.  n.  14. 


1 24         Forms  and  Parts  of  the  Procedure. 

would  be  altogether  wrong  to  show  the  document  alone 
to  the  witness  and  ask  him  whether  or  not  it  be  in  the 
handwriting  of  N.* 

72*.  There  are  still  some  questions  concerning  written 
evidence  not  touched  upon  by  our  author,  questions  that 
may  become  important  in  criminal  trials  against  clerics ; 
e.g.  when  on  a  charge  of  familiarity  the  correspond- 
ence between  the  parties  is  offered  in  evidence ;  or 
when  in  a  case  of  mal-administration  the  account-books 
or  the  church-records  are  produced  in  court ;  or  when 
defendant  charged  with  unlawful  exercise  of  the  min- 
istry appeals  to  a  written  faculty  which  he  has  lost 
or  thrown  away.  In  such  cases  the  main  question 
will  be  how  to  establish  or  to  disprove  the  genuineness, 
authenticity,  existence,  or  loss  of  the  documents,  etc. 
Suffice  it  to  say  that  all  these  points  must  be  decided 
by  witnesses  mostly,  either  because  they  are  attesting 
witnesses  or  parties  to  the  contents  of  the  writing,  or 
because  they  have  seen  and  read  it,  or  know  its  hand- 
writing, or  have  at  least  heard  of  its  contents,  etc.  Parol 
evidence  may  also  serve  to  interpret  written  evidence,  to 
explain  doubtful  terms  of  the  writing,  to  rebut  presump- 
tions arising  from  extrinsic  or  intrinsic  defects,  e.g.  imper- 
fect address,  erasures,  cancellings,  interpolations,  etc. ;  it 
may  even  defeat  written  evidence  altogether  on  the 
ground  of  fraud  or  mistake.  All  this  applies  specially  to 
private  writings,  though  not  exclusively.  There  are 
mainly  two  objects  for  which  parol  evidence  may  bear 
directly  on  written  evidence ;  namely,  either  to  establish 
or  to  deny,  first,  the  genuineness  or  authenticity  of  the 
document ;  secondly,  the  truth  of  its  contents.  For  a 
full  treatment  of  the  subject  consult  the  Commentators, 
h.  t.,  Santi,  n.  15  ff. 

'  On  the  comparison  of  handwriting  cfr.  Keiffenstuel,  h.  t.  n.  165, 
599- 


Judicial  Evidence,  125 

3.  Circumstantial  Evidence. 

73*.  "  Facts  may  be  proved  in  two  ways  :  first,  directly 
and  immediately  by  the  testimony  of  witnesses  and  docu- 
ments; or,  secondly,  indirectly  by  means  of  a  greater  or 
smaller  amount  of  indications,  conjectures  and  presump- 
tions that  cannot  be  rationally  explained  except  on  the 
supposition  of  the  fact  in  question." '  This  latter  kind 
of  evidence  is  called  presumptive  or,  because  generally 
furnished  by  the  circumstances  of  the  case,  circum- 
stantial.* 

The  rational  basis  of  such  evidence  lies  in  the  connec- 
tion of  the  facts  or  circumstances  known  and  proved 
with  the  fact  at  issue.  That  connection  is  the  ground 
on  which  the  inference  is  made  from  the  facts  known  to 
the  unknown  or  at  least  unproved.  Hence  "  a  presump- 
tion is  more  or  less  strong  according  as  the  fact  pre- 
sumed is  a  necessary,  usual  or  infrequent  consequence 
of  the  fact  or  facts  seen,  known  or  proven."  In  the 
first  case  the  presumption  is  called  violent  {vehemens, 
violenta,  gravissimd),  because  the  indications  are  so 
strong  that  they  morally  force  the  corresponding  infer- 
ence upon  the  mind.  When,  however,  the  indications 
are  not  so  strong,  but  still  of  such  a  nature  that,  judging 
by  the  general  experience  of  man,  it  would  be  unusual 

'  Ada  S.  S..  VI.  422. 

*  The  C.  J.  Can.  treats  of  it  in  1.  n.  tit.  23,  "  De  praesumptionibus." 
Qons\i\\.  Commentators,  ibid.;  Smith,  n.  874  ff.;  Rota,  n.  683 ff. — Canonists 
always  distinguish  between />ra^j«/////itf  and  indicium,  the  former  being 
the  efTeci  of  the  latter.  S.  presumption  is  a  reasonable  conclusion  upon 
some  fact  at  issue  drawn  from  indications  or  circumstances  generally 
connected  in  reality  with  such  fact.  An  indicium  (indication,  mark)  is  a 
notable  sign  that  may  in  some  doubtful  matter  lead  to  the  truth.  The 
two  terms,  however,  are  often  used  indiscriminately  on  account  of  their 
close  connection;  so  much  so  that  even  the  qualifying  terms  vehemens, 
gravis,  ttmeraria  arc  equally  applied  to  presumptions  as  well  as  indica- 
tions. 


126         Forms  and  Parts  of  the  Procedu7'c. 

and  extraordinary  if  the  inference  were  not  true,  the  pre- 
sumption is  strong  ■3iX\<\  weighty  {gravis,  probabilis,  magnd). 
Finally,  a  presumption  is  slight  and  rash  {levis,  t cineraria) 
when  the  facts  known  do  not  justify  an  inference  to  the 
matter  in  doubt,  so  that  it  would  indeed  be  unusual  if 
such  inference  were  true.  Such  an  unreasonable  pre- 
sumption, evidently,  is  no  evidence,  while  a  strong  pre- 
sumption gives  half-proof;  so  does  a  violent  presumption 
against  the  accused  in  a  criminal  suit,  although  in  a  civil 
case  it  is  full  proof. 

Another  famous  division  of  presumptions  is  that  in 
legal  {juris)  and  natural  {Jtoniinis).  The ^rst  are  those 
where  the  law  itself  draws  the  conclusion  from  certain 
facts.  Hence,  as  soon  as  these  are  proved,  the  judge 
needs  only  apply  that  conclusion.  They  are  of  two 
kinds,  conclusive  {juris  et  de  jure),  against  which  no  direct 
proof  is  admitted,  for  they  are  as  firm  as  the  law  itself^ 
and  rebuttable  {juris  simpliciter),  which  may  be  set  aside 
by  contrary  proof.  Natural  presumptions  we  call  those 
where  the  law  allows  indications  or  circumstances  to 
exert  their  natural  influence  on  the  judge's  {honiinis) 
mind,  and  leaves  it  altogether  to  himself  to  make  the  in- 
ference that  he  considers  warranted  by  the  facts  already 
proved.  The  same  distinction  is  sometimes  expressed 
by  the  terms  presumptions  of  law  and  presumptions  of 
facts.  The  former  are  enumerated  by  the  commentators. 
The  efifect  of  legal  presumptions  is  that  they  are  pre- 
sumed to  be  true  until  the  contrary  is  proved,  and  that 
consequently  the  burden  of  proof  on  this  point  is  thrown 
on  the  party  against  whom  the  presumptions  stand. 
'  With  regard  to  the  relative  weight  of  conflicting  pre- 
sumptions canonists  generally  lay  down  the  following 
rules:'  i.  Legal  presumptions  are  stronger  than  natural, 
and    special   presumptions   stronger  than   general   ones. 

'  Cfr.  Santi,  h.  t.  n.  13. 


Defensive  Proceedings.  1 2  7 

2.  Presumptions  derived  from  the  ordinary  course  of 
nature  are  stronger  than  casual  ones.  3.  Presumptions 
that  stand  for  the  validity  of  an  act  are  favored.  4.  Pre- 
sumptions in  favor  of  the  accused  are  preferred. 

It  has  been  asked  whether  Canon  law  allows  a  con- 
viction in  a  criminal  trial  on  purely  circumstantial  evi- 
dence. It  does,  and  there  is  no  reason  why  it  should 
not  when  the  degree  of  that  evidence  is  such  as  to  estab- 
lish a  moral  certainty  of  the  crime.  Yet  canonists  are 
nearly  unanimous  in  saying  that  in  such  a  case  the  judge 
should  not  impose  the  full  punishment  of  the  criminal 
code,  but,  as  no  direct  proof  of  the  crime  was  given, 
should  modify  the  sentence  according  to  the  degree  of 
the  evidence. 


CHAPTER   III. 

DEFENSIVE  PROCEEDINGS. 

Art.  I.   Terms  and  Exceptions. 

74*.  Although  the  various  special  proceedings  now  to 
be  mentioned  may  also  be  used  by  the  prosecution,  still 
they  are  principally  means  of  defence  and  are  therefore 
called  by  canonists  the  weapons  and  shields  of  the  accused. 

l^y  judicial  terms  we  understand  here  such  intervals  of 
time  as  are  granted  by  a  court  for  a  better,  more  thorough 
and  perfect  execution  of  some  judicial  act.'  The  whole 
teaching  of  Canon  law  regarding  terms  is  based  on  two 
conditions.  As  applied  to  the  criminal  trial  they  are 
these :  first,  the  public   welfare  as  well  as  justice  and 

'  As  the  transaction  itself  is  by  such  terms  necessarily  delayed,  Canon 
law  treats  of  them  under  title  8,  De  Dilationibus  (I.  !!.)•  Commentators, 
ancient  and  modern,  use  the  words  indiscriminately.  Cfr.  Acta  S.  S., 
XV.  393  sqq. ;   Pierant.,  tit.  5,  n.  18  sqq. ;  Smith,  n.  1078  ff. 


1 28         Forms  and  Parts  of  the  Procedure. 

equity  demand  that  the  accused,  if  guilty,  shall  not  with- 
out  cause  long  remain  unpunished ;  or  if  innocent,  shall 
as  soon  as  possible  be  discharged.  Hence  the  law  abhors 
unnecessary,  unreasonable,  and  especially  frustratory  or 
fraudulent  delays ;  no  court  may  grant  terms  for  such 
purpose ;  and  if  more  than  two  or  three  terms  for  the 
same  object  are  demanded  without  urgent  and  evident 
cause,  the  petitioner  must  make  affidavit  that  he  asks 
without  fraudulent  intent  {jur.  malitiae).  Secondly,  it  is 
generally  impossible  for  the  parties,  especially  the  de- 
fence, to  have  all  the  material  ready  at  hand  that  will  be 
necessary  to  prove  their  own  allegations  or  defeat  those 
of  the  opposition.  The  judge  himself  may  often  be 
unable  with  all  the  evidence,  pro  et  contra,  before  him  to 
form  a  certain  judgment  at  once  without  further  con- 
sideration. Justice  therefore  demands  again  that  what- 
ever time  may  be  required  for  these  purposes  shall  be 
granted  by  the  court.  On  the  strength  of  these  two 
principles  canonists  maintain  that  most  of  the  former 
legal  terms,  i.e.  those  established  and  expressed  by 
the  Corpus  J.,  have  become  arbitrary,  i.e.  dependent 
on  the  discretion  of  the  court,  at  least  as  regards  their 
length.  Whether  a  short  or  long,  a  simple  or  a  peremp- 
tory term  shall  be  granted,  will  depend  on  the  nature  of 
the  case  and  the  circumstances  of  persons,  places  and 
times.  No  one  doubts  that  with  our  improved  means 
and  ways  of  communication  terms  of  three,  six  and 
even  nine  months  would  be  unwarrantable  delays;  yet 
notwithstanding  "  lightning  expresses'*  and  "  fast  mails" 
and  "  ocean  racers"  judicial  delays  will  be  unavoidable. 
To  grant  all  the  time  required,  is  a  postulate  of  justice 
{substantialisj.  regula)  also  in  summary  trials;  and  even 
here,  if  the  term  given  by  the  judge  should  be  found  in- 
sufficient, it  may  be  extended  {prorogation)  as  far  as  the 
business  requires. 


Defensive  Proceedmgs.  1 29 

75.*  With  regard  to  the  different  kinds  of  terms,  we 
may  for  our  purpose  mention  principally  five.'  Citatory  is 
called  the  time  stated  in  the  summons  when  the  accused 
is  to  appear  in  court  ;  while  the  time  given  him  to  de- 
liberate whether  to  plead  guilty  or  put  in  a  declinatory 
plea  or  file  his  answer  and  let  the  case  be  tried,  is  called 
the  deliberative  term.  Canonists  observe  that  when  the 
charge  was  made  known  to  the  accused  in  the  citation  in 
such  manner  as  to  enable  him  to  prepare  his  answer,  no 
special  deliberative  term  will  be  granted. 

Query.  Does  our  Instruction  admit  a  deliberative  term  ? 
We  certainly  think  it  does.  There  is  nothing  in  it  to 
prove  such  an  exception  from  the  general  law.  The  ex- 
amination mentioned  in  art.  25  does  not  necessarily  refer 
to  the  first  appearance  of  defendant,  but  to  the  time  when, 
having  decided  to  contest  the  charge,  he  comes  to  answer. 

Probatory  terms  are  those  given  to  the  prosecution  as 
well  as  the  defence  to  bring  in  their  evidence,  the  one  to 
support  the  charge,  the  other  his  answer,  both  to  prove 
their  exceptions  (arts.  28,  33).'  These  terms  will  gener- 
ally be  granted  when  new  testimony  is  to  be  produced. 

A  definitory  term  is  the  time  after  the  conclusion,  when 
the  court  reserves  judgment  till  another  day.  There  is 
a  marked  difference  in  this  regard  between  the  UOrdi- 
nario  and  the  Cum  Magn.  The  former  (art.  35)  seems  to 
allow  no  such  terms,  for  the  simple  reason  that  the  court 
was  allowed  sufificient  time  (by  art.  33)  to  consider  the 
whole  case  and  form  a  judgment  previous  to  the  final 
pleading  in  court  (art.  34).  But  as  according  to  the  lat- 
ter instruction  the  final  pleading  is  purely  in  writing  to 

'  Cfr.  San/i,  h.  t.  n.  3  sqq. 

'  These  comprise  the  famous  dilationum  termini,  l'  ad  articulandum, 
1"  ad  dicendum  contra   articulos,  3°  ad  produceiidum  omnia,  4*  ad  dicen- 
dum  contra  producta.     By  articuli  or  positiones  Canon  and  Civil  law  mean 
the  particular  specifications  of  the  statement  (charge)  and  the  answer. 
9 


1 30         Forms  and  Parts  of  the  Procedure. 

be  handed  to  the  Ordinary  (art.  33),  he  will  appoint  a  day 
for  judgment  only  after  having  fully  informed  himself  of 
the  merits  of  the  case. 

An  executory  term  is  a  delay  granted  before  the  sen- 
tence is  to  be  executed  ;  a  respite.  Per  se  there  are  no 
such  terms  in  criminal  cases,  except  one  choose  to  give 
this  name  to  the  time  pending  an  appeal  in  suspensivo. 

The  effect  of  a  judicial  term  is  that  during  that  whole 
time  the  court  cannot  proceed  in  the  particular  point  or 
matter  for  which  the  delay  was  granted,  and  that  after 
the  lapse  of  the  term,  if  peremptory,  the  court  may  and 
ought  to  proceed,  although  the  petitioner  has  not  yet 
completed  his  work. 

According  to  the  commentators  the  term  must  be 
counted  from  the  day  when  petitioner  is  officially  noti- 
fied of  it.  This,  however,  supposes  that  the  delay  granted 
is  expressed  by  a  certain  number  of  days  or  months.  It 
may,  therefore,  be  advisable  that  the  judge  specify  in 
the  writ  of  delay  a  certain  definite  day  {terminum)  of  such 
month  and  year  as  the  last  day  of  the  term.  Still  the 
day  when  the  writ  was  served  should  be  recorded. 

'^6.  Exceptions  are  the  strongest  weapons  of  the  defence. 
They  are  not  mere  objections  to  some  asertions  made  in 
court,  but  regular  pleas  by  which  the  defence  tries  either 
wholly  to  defeat  or  at  least   to  retard  the  prosecution. 
The  first  are  called  peretnptory,  because  if  sustained  they 
positively  finish  the  matter;    the   prosecution    must   be, 
stopped  and  the  case  dismissed.     Such  would  be  the  case*^ 
if  the  accused  prove  that  what  he  is  charged  with  is  no   "' 
crime  at  all,  or  that  there  is  no  cause  for  action  (pleas  in 
bar).     Dilatory  pleas  only  delay  the  proceedings  without 
defeating  the  whole  cause.     Such  pleas  may  be  directed 
against  the  judge  himself,  challenging  him  with  being  in- 
competent in  the  case  (plea  to  the  Jurisdiction)  or  as  being 
suspect  of  partiality  {recusation,  see  n.  yj).   These  are  called 


Defensive  Proceedings,  131 

declinatory  pleas,  because  the  accused  declines  to  have  liis 
case  tried  by  that  judge  or  court.  Exceptions  may  also 
be  taken  against  the  testimony  on  three  grounds;  first, 
against  the  witnesses  themselves  as  incompetent  to  testify. 
This  plea,  however,  may  stand  over  till  the  conclusion. 
For  it  may  appear  that  witness's  testimony  is  to  be 
thrown  out  as  irrelevant,  which  renders  it  unnecessary  to 
support  or  contest  the  plea.  Or  the  plea  may  be  to  the 
examination  of  the  witnesses,  showing  that  they  were  not 
sworn,  or  were  examined  in  the  hearing  of  one  another  or 
in  a  captious  and  misleading  manner,  etc.  Again,  excep- 
tion may  be  made  to  their  depositions  as  irrelevant,  con- 
flicting or  variant,  that  their  evidence  is  very  light:  the 
same  may  be  objected  against  circumstantial  evidence, 
and  moreover  that  it  is  unsupported  by  direct  evidence. 
Pleas  against  written  evidence  are  to  the  genuineness  and 
authenticity  of  the  documents  or  to  the  credibility  or  com- 
petency of  the  writer.  Finally,  there  are  pleas  to  the 
proceeding  itself  in  its  different  parts  as  irregular,  illegal, 
void,  etc.  Special  mention  is  to  be  made  of  the  plea  of 
an  alibi  {probatio  negativa  coarctata).  By  it  the  accused 
may  show  that  at  the  time  when  charged  with  having 
committed  the  crime  in  a  certain  place,  or  with  certain 
persons,  or  before  certain  witnesses,  he  was  in  another 
place  or  in  other  company,  or  that  they  themselves  were 
in  other  places,  etc. 

While  Canon  law  grants  to  defendant  the  right  of  valid 
exceptions  even  in  a  summary  proceeding,'  it  also  strictly 
obliges  the  court  to  strike  out  all  sham  pleas  {cxc.  frivolae, 
frjistraioriae)  entered  only  for  tiie  purpose  of  delay 
{malitiosa  procrasttnaiio). 

It  is  unnecessary  to  say  that  the  prosecution  may  also 
enter  exceptions  against  the  statements  or  pleas  of  the 
defence.  But  how  long  such  juridical  altercations  may 
'  Hota,  n.  730. 


132         Forms  and  Parts  of  the  Procedure. 

continue  lies  in  the  discretion  of  the  court.'  The  same 
must  also  decide  whether  a  plea  entered  has  been  sus- 
tained by  the  pleader  or  not. 

With  regard  to  the  time  when  pleas  should  be  entered, 
no  particular  time  can  be  assigned  in  a  summary  proceed- 
ing, except  that  it  must  be  done  before  the  conclusion  of 
the  trial,  or  if  new  grounds  for  an  exception  were  dis- 
covered only  after  that,  at  least  before  the  sentence  ; 
after  this  there  remain  only  the  appeal  and  the  plea  to 
the  execution. 

The  order  in  which  to  enter  different  pleas  is  evidently 
the  logical  one  ;  hence,  ist,  to  the  jurisdiction  of  the  court ; 
2d,  to  the  person  of  the  judge  (recusation) ;  3d,  to  the  ac- 
tion itself;  4th,  to  the  proceeding  ;  5th,  to  the  evidence. 
Finally,  the  plea  itself  should  in  form  be  clear,  distinct 
and  precise,  without  argumentation,  stating  briefly  and 
directly  the  exception  in  all  its  legal  force. 

Art.  II.  Recusation. 

TJ.  There  are  cases  in  which  the  ecclesiastic  holding 
the  office  of  judge  in  a  criminal  proceeding  is  not  unfit 
for  the  same ;  nevertheless  the  parties,  especially  the 
accused,  have  no  real  confidence  in  him,  because  they 
fear  that  his  love  of  justice  may,  not  by  any  fault  of 
his,  but  through  certain  influences  be  impaired ;  they 
consider  the  judge  to  be  biased,  as  it  is  called  in  juris- 
prudence. 

Following  the  Roman  law,  the  sacred  Canons  also  gave 
to  the  parties  the  right  to  challenge  {jus  recusandi)  the 
judge,  if  they  should  have  any  apprehension  of  his 
being  biased  or  prejudiced  against  them.'     Many  special 

'  The  terms  reflicatio,  duplicatio,  tr'tplicatio,  etc..  of  canonists  are  about 
the  same  as  joinder,  rejoinder  and  surrejoinder  in  Common  law. 

*  Hence  recusation  is  not  a  plea  to  the  jurisdiction  or  competency  of 
the  judge  (exc.  jud.  inhabilis),  but  rather  to  his  person,  a  personal  chal- 


Defensive  Proceedings.  133 

grounds  for  a  challenge  are  enumerated  in  law,  but 
not  all,  since  the  matter  is  of  such  a  subjective  and 
personal  nature.  Among  them  are  consanguinity  or 
affinity,*  perhaps  to  the  fourth  degree  ;  enmity,"  friend- 
ship,* familiarity,*  fellow-membership  with  some  of  the 
parties  in  the  same  society ;  *  having  acted  previously 
in  the  same  or  similar  cause  as  counsel  or  advocate ;  * 
the  subordination  of  the  judge  under  one  of  the  par- 
ties,^ or  sometimes  vice  versa.*  Recusation  is  only  a 
dilatory,  not  a  peremptory  exception,  and  must  be 
made  in  writing'  to  the  judge  himself,  before  the  pub- 
lic pleading  {contestatio  delicti)  begins."  After  that  time 
the  recusant  can  enter  this  plea  only  upon  making  an 
affidavit  that  he  had  no  knowledge  of   the  reasons  for 

lenge  for  cause  (exc,  jud.  suspecti).  Recusation  may  be  made  not  only 
against  a  judge-delegate,  but  also  against  the  Ordinary  (Rota,  n.  732);  not 
only  Jigainst  one  of  the  associate  judges,  but  against  the  whole  bench. 
Conunentaiors  deal  with  the  subject  under  tits.  22,  28,  1.  II.  See  an  inter- 
esting case  in  Acta  S.  S.,  XVI.,  p.  328. 

'  c.  36,  X..  II.  28.  «c.  4.  X..  n.  6. 

•  c.  15.  ^  2,  C.  3,  q.  5.  »  c.  35.  X.,  I.  29. 
'  c.  25.  X..  I.  29.  •  c.  36,  X.,  II.  28. 
'  c.  2.  X  ,  II.  6;  c.  25.  X.,  I.  29. 

•  c.  17,  X..  I.  29.  All  these  different  reasons  are  indicated  by  the 
Cioss  in  the  following  verse  : 

Subjectus,  dominus  et  commensalis,  amicus, 
Jncola,  canonicus,  ac  attingens,  inimicus. 
Si  causam  similem  delegatus  tueatur, 
Vel  si  patronus  fuit  olim,  tunc  amoveatur. 

•  The  bill  must  clearly  and  in' detail  state  the  reasons  or  grounds  upon 
which  the  judge  is  distrusted,  quia  judicis  recusatio  ad  suggilationem  exis- 
timationis  et  quodammodo  injuriam  illius pertinet.     Schmalzgr.,  h.  t.  n.  134. 

'"  It  is  the  nature  of  a  recusation  that  it  must  be  made  before  the  person 
thus  challenged  begins  to  exercise  his  jurisdiction.  To  let  him  do  this 
would  be  to  admit  his  authority.  Hence  a  recusation  of  the  auditor 
must  be  made  as  soon  as  the  recusant  is  cited  by  him.  To  accept  his 
summons  is  to  acknowledge  his  right  to  try  the  case. 


134        Forms  and  Parts  of  the  Procedure. 

the  challenge  before/  or  in  case  the  grounds  of  the 
challenge  arose  only  afterwards."  The  sentence  passed 
by  a  judge  who  might  have  been  effectively  recused  but 
was  not  challenged  at  the  proper  time,  is  not  void,  at 
least  on  this  plea.' 

78.  The  judge  who  is  challenged  will  himself  examine 
the  grounds  and  the  evidence  upon  which  the  recusation 
is  made.  If  he  see  at  a  glance  that  the  reasons  for  his 
recusation  are  good,  he  ought  to  retire  at  once  from  the 
trial.  But  if  he  clearly  perceive  that  the  suspicion  is  en- 
tirely unfounded.*  or  if  within  the  reasonable  time  that 
must  be  given  to  the  recusant  to  establish  the  challenge,* 
no  proof  or  any  weighty  reason  for  challenge  can  be  fur- 
nished, he  himself  enters  without  further  delay  upon  the 
trial  of  the  cause.'  A  papal  delegate,  as  well  as  any  judge 
who  has  the  right  to  delegate  another  in  his  place,  may 
commit  the  trial  to  another  before  the  plea  of  recusation 
is  put  in,  but  not  after  this/'  In  all  cases  where  the  plea 
is  not  manifestly  a  frivolous  one  and  the  parties  cannot 
agree  with  the  judge  as  to  his  exclusion,  we  must  see  first 
whether  the  judge  officiate  individually  (judge  sole)  or 
collegialiter  (j.  associate),  and  whether  he  be  Ordinary  or 
delegate. 

In  a  college  of  more  than  two  judges,  the  unchallenged 
judges  decide  the  case  of  their  colleague,  provided  this 

'  c.  4t,  §  1,  X.,  H.  28.  « c.  28,  X.,  I.  29. 

'  S.  C.  Epp.,  2  Aug.  1004.     AJP.,  XX.  85. 

*  In  which  case  the  recusation  is  called  frivolous  &nd.  belongs  to  the 
class  of  sTiam  pleas. 

*  AJP..  XIII.  52,  129. 

*  c.  2.  in  6°,  11.  15;  cc.  41,  61.  X..  n.  28. 

''  After  the  plea  has  been  entered,  but  before  it  is  admitted  and  in- 
dorsed by  the  triors,  the  judge  may  delegate  another  if  the  recusant  con- 
sent; but  even  with  such  consent  he  could  no  longer  delegate  after  the 
recusation  has  been  upheld  by  the  arbiters,     c.  5,  in  6°,  i.  14. 


Defensive  Proceedings.  135 

right  was  not  withheld  from  tlicm  by  being  reserved  to 
the  bishop  himself.  If  they  cannot  all  agree  in  their 
opinions,  the  majority  decides.  When  only  two  judges 
are  to  try  the  cause,  the  delegate  who  was  not  challenged 
can  only  then  alone  decide  on  the  objection  against  his 
associate,  if  they  were  delegated  with  the  clause  that  if 
both  could  not  undertake  the  trial,  one  alone  of  them 
should  proceed  in  the  matter.'  In  case  of  a  challenge 
against  a  delegated  judge -sole,  the  delegator  decides. 
When  the  vicar-general  (official)  is  challenged,  the  bishop 
decides,  although  no  appeal  lies  to  him.'  At  present  the 
chapter  can  no  longer  decide  upon  the  recusation  of  the 
vicar  capitular,  notwithstanding  former  practice. 

79.  Where,  however,  none  of  the  above  cases  exist,  but 
where  the  challenge  is  made  against  the  bishop  or  the 
vicar  capitular  or  any  other  judge  ordinary,  there  the 
parties,  or  the  judge  and  his  recusant,  are  to  choose  one 
or  more  arbiters  *  who  do  not  reside  too  far  away,  and 
who  of  course  must  be  clerics.  These  triors  will  decide 
whether  the  recusation  be  made  on  legal  grounds,  and 
whether  these  be  clearly  proved.  If  the  parties  cannot 
agree  as  to  the  arbiters  to  be  chosen,  then  each  party 
shall  choose  one.  If  the  arbiters  themselves  cannot  agree, 
they  in  turn  will  choose  a  third  one  in  order  that  a  deci- 
sion may  be  obtained  by  majority  of  votes. 

Should  the  arbiters  declare  that  no  legal  reason  for 
challenge  exists,  or  that  the  one  alleged  is  not  proved, 
the  judge  may  proceed  in  the  cause.*  But  if  a  party  is 
successful  with  the  recusation,  the  judge  so  recused  must 

'  c.  4.  in  6°,  I.  14.  *  Ibid. 

*  c.  10,  X.,  II.  2.  These  arbiters  are  ar6itri Jurii,  not  a.  comproniissarii, 
nor  mere  arbitratores.  Their  power  and  proceeding  is  strictly  juridical, 
and  their  decision  is  law  and  can  be  reversed  only  on  appeal  to  a  higher 
court.  Cfr.  1.  i.  lit.  43,  "de  arbitris."  In  Common  law  arbiters  in 
case  of  challenge  are  called  triors  (Bouvier,  s.  v.). 

*c.6i.  X,H.  28. 


136         Forms  and  Parts  of  the  Procedure. 

refrain  from  any  further  judicial  action  ;  for,  says  the 
Canon,'  "  common-sense  teaches  that  suspected  or  inimi- 
cal persons  cannot  act  as  judges."  In  this  case  another 
judge  should  be  appointed  by  the  higher  court  rather 
than  that  it  should  itself  try  the  cause  and  thus  deprive 
the  parties  of  an  appellate  instance,  if  an  appeal  in  the 
case  should  afterwards  be  desirable. 

80.  A  plea  of  recusation  or  challenge  may  also  be  en- 
tered against  the  chancellor  for  the  same  or  similar  causes 
as  against  the  judge.'  Some  writers  maintain  the  same 
in  regard  to  the  clerk  or  secretary.^ 


CHAPTER   IV. 

PROCEEDING  IN   CONTUMACY. 

81.  "By  contumacia*  is  understood  an  obstinate  disobe- 
dience, and  by  coiitumax  the  person  so  disobeying. 
Here,  however,  we  call  contumax  the  person  who  being 
accused  and  summoned  to  appear  for  a  hearing,  refuses 
to  obey  the  order  of  the  judge.*     In  the  old  law  censures 

'c.  14.  §  I,  X..h.  t. 

'  S.  C.  Epp.,  2  Aug.  1804.     AJP..  XX.  85. 

'  S.  C.  Epp.  Imm.,  22  June  1660;  13  Sept.  1692.  And  we  are  in- 
clined to  add  the  fiscal  prosecutor  and  the  auditor  to  the  list.  In  these 
cases  the  judge  himself  will  naturally  have  to  decide  whether  the  recusa- 
tion is  to  be  upheld  or  dismissed. 

*  Cfr.  Commentators  in  1.  II.  tit.  14;  Pierantonelli,  tit.  V.  n.  g  sqq. ; 
Bouix,  II.  p.  164  sqq. 

'  This  is  only  one  kind  of  contumacy.  There  are,  however,  others 
expressed  in  the  verse: 

Non  veniens,  nor  restituens,  citiiisque  recedrns. 
Nil  dicens,  pignusque  tenens,  jurareque  nolens, 
Obscureque  loquens,  isti  sunt  Jure  rebelles. 
Hence  Grandclaude  defines  contumacy  as  disobedience  against  the  judge 


Proceeding  in  Contumacy.  137 

were  indeed  passed  upon  such  contumacious  persons,  to 
compel  their  appearance  ;  but  the  Tridentinum  allows  the 
use  of  censures  now  only  when  a  person  convicted  of  a 
grievous  offence  does  not  submit  to  the  execution.' 

While  Canon  law,  following  the  Roman,  requires  in 
general  one  peremptory  citation  or  three  simple  ones,  the 
Instruction,  art.  24,  holds  the  accused  as  contumacious,  if 
after  one  simple  citation  and  another  but  peremptory 
one  he  refuse  to  appear  before  the  auditor  without  being 
lawfully  excused  or  hindered  from  obeying  the  summons.* 

The  proceeding  in  case  of  contumacy  is  instituted  on 
motion  of  the  fiscal,  who  will  so  move  after  the  first  in- 
effectual citation,  and  again  after  the  peremptory  one. 
When  the  contumacy  is  clearly  proved,  a  defender  of 
the  contumax  is  officially  appointed  by  the  court,  and 
a  term  fixed  for  the  trial  of  the  cause.*  At  the  ap- 
pointed time  the  court  will  proceed  in  the  case*  against 
the  accused  in  his  absence  as  if  he  were  present.  Being 
wilfully  absent  he  renounces  the  privilege  of  self-defence, 
and  by  disobeying  the  court  creates  the  suspicion  of  guilt. 
Yet  his  disobedience  does  not  prove  his  guilt,  and  to  be 
convicted  the  proof  must  be  just  as  complete  as  if  he 

legitime  vocantem  vel  quid  fieri  praecipientem.  With  regard  to  the  citation 
canonists  distinguish  between  true  and  fictitious  contumacy.  The  first  is 
when  the  person  simply  disobeys  the  summons  received;  the  other,  when 
he  maliciously  prevents  the  summons  from  being  served  on  him.  The 
consequence  is  the  same  in  either  case. 
'  S.  XXV.  c.  3.  de  Ref. 

*  If  the  accused  cannot  or  need  not  appear,  he  must  notify  the  judge 
by  stating  the  reasons.  He  may  do  it  by  an  authorized  messenger  or  by 
registered  letter.  Pierant.,  1.  c.  n.  12.  Otherwise  he  will  be  presumed 
contumacious  {c.  praesumptd).  If  he  proves  afterward  that  he  had  good 
reasons  for  disobeying  at  the  time,  he  is  said  in  Canon  law  purgare 
contumaciam ,  a  phrase  still  used  in  Common  law — "  to  purge  the  con- 
tempt of  the  court." 

*  13  Apr.  1S18.     AJP.,  XIII.  47,  74.  and  XX.  714. 

*  Even  to  the  final  judgment  which  will  be  given  in  default. 


1 38         Forms  and  Parts  of  the  Procedure. 

were  present ;  to  be  considered  contumacious  is  not  the 
same  as  being  pronounced  guilty.'  The  contumacial  pro- 
ceeding differs  from  the  regular  proceeding  only  in  omit- 
ting those  acts  which  require  the  personal  action,  or  at 
least  presence,  of  the  accused,'  as  examination,  confron- 
tation, self-defence,  etc.  The  punishment  to  be  imposed 
in  case  of  guilt  is  that  fixed  by  law,  except  it  be  capital 
punishment,  to  which  in  Canonical  law  degradation  is 
compared.'  This,  therefore,  cannot  be  inflicted  in  a  con- 
tumacial proceeding,  but  deposition,  removal  and  other 
canonical  punishments  can.*  The  person  proceeded 
against  as  contumacious  may  afterwards  demand  a  new 
trial,  if  he  can  prove  the  former  to  be  void  on  account  of 
a  falsely  presumed  contumacy.  After  the  lapse  of  ten 
years,  however,  a  dispensation  from  Rome  for  that  pur- 
pose will  be  necessary.* 


CHAPTER    V. 

Tin-:     SENTENCE, 


82*.  Sentence  is  the  decision  or  judgment  of  the  court 
upon  a  criminal  issue  tried  before  it.'     Judgments  are 

'  Cfr.  C.  PI.  B.  III.,  n.  313. 

'  The  Acta  S.  S.,  xv.  p.  393,  consider  it  fair  and  wise  on  the  part  of 
the  judge  to  inform  the  contumax  of  the  result  of  the  trial  before  giving 
sentence,  especially  if  the  accused  had  not  before  been  acquainted  with 
the  particulars  of  the  charge  against  him.  Such  "grace"  {gratiam  fecerit 
€1  benignitas  judicantis  ;  24.  X.,  i.  29)  is  allowed  by  the  canons. 

'  Rota,  n.  761  maintains  the  same  of  excommunication. 

<  13  Apr.  1818.     AJP.,  XX.  714. 
.   *  May  1715.     AJP.,  xiii.  47,  75. 

•  Commentators  in  I.  11.  tit.  27,  "de  sententia  et  re  judicata;"  Pierant., 
1.  c,  n.  29  sqq.;  Kota,  n.  737  sqq.  The  Latin  term  sententia  means  judg- 
ment generally  whether  in  civil  or  criminal  cases,  whereas  the  English 
sentence  is  more  commonly  limited  to  criminal  judgments. 


The  Sentence.  139 

either  interlocutory  or  final.  The  former  are  given  in 
the  middle  of  a  cause  upon  some  plea,  proceeding  or 
default  which  is  only  intermediate  and  incidental,  and 
do  not  finally  determine  or  finish  the  suit,  like  the  lat- 
ter, which  at  once  decide  the  main  issue  and  thus  put 
an  end  to  the  trial  before  the  same  court.  Some  in- 
terlocutory judgments  may  stop  any  further  proceeding 
and  therefore  be  compared  in  this  regard  to  final  judg- 
ments {vim  sententiae  definitivae  habent),  e.g.  judgment  in 
favor  of  a  plea  in  bar.  An  interlocutory  judgment  differs 
from  a  final  one  also  in  that  it  can  be  recalled  or  reversed 
by  the  judge  at  any  time  during  the  trial,  in  that  it  may 
be  given  orally  provided  it  is  recorded  by  the  clerk,  and 
in  that  no  appeal  can  be  taken  from  it,  except  it  have 
the  force  of  a  final  judgment.' 

83*.  The  requisites  of  a  legitimate  sentence  are  external 
as  well  as  internal.  The  external  refer  to  the  time  (not 
on  holy-days  nor  at  night),  the  place  (not  in  loco  sacro) 
and  conditions  (in  writing;  also  having  summoned  de- 
fendant to  hear  judgment,  which  may,  however,  be  given 
in  his  absence). 

Of  the  formal  or  internal  requisites  the  author  says : 
"  The  judge  must  not  give  sentence  in  haste,  as  if  it  were 
a  prejudice  formed  already  during  the  trial,  long  before 
the  final  discussion;  but  with  deliberation,  after  having 
most  carefully  weighed  the  arguments  for  and  against  the 
accused.  He  must  render  judgment  in  his  official  charac- 
ter as  judge,  and  therefore  not  allow  himself  to  be  led  by 
any  extrajudicial  opinions  formed  outside  of  the  regular 
proceeding,  nor  by  any  personal  feeling,  but  notice,  only 
the  evidence  recorded  in  the  acts,  and  take  into  consider- 
ation what  was  done  before  him  as  judge;  in  a  word,  his 
decision  must  be  a  judicial  one,  and,  as  far  as  it  lies  with- 
in mere  human  power,  strictly  just.    To  obtain  this  is  the 

'  Bouix,  II.  p.  224  sq. 


140         Forms  and  Parts  of  the  Procedure. 

object  of  the  whole  proceeding.  By  the  sentence  the 
judge  must  either  convict  or  acquit  defendant.  With 
regard  to  the  punishment  the  sentence  of  condemnation 
is  either  merely  declaratory,  declaring  that  delinquent 
has  at  the  very  time  when  committing  the  criminal  act 
incurred  the  punishment  previously  threatened  or  sanc- 
tioned either  by  the  law  or  by  the  judge ;  or  it  may  be 
actually  or  properly  condemnatory  by  determining  and 
imposing  the  penalty  only  then."  If  corrective  measures 
in  the  same  matter  have  already  been  taken  against  de- 
fendant, the  judge  may  make  allowance  for  it  in  the  pen- 
alty now  to  be  imposed.'  The  reasons  for  the  verdict,  if 
condemnatory,  must  be  clearly  expressed,"  as  well  as  the 
canonical  penalty  to  be  inflicted  {Instr.,  art.  35).  It  is  a 
privilege  of  the  Roman  Congregations  not  to  state  the 
reasons  of  their  decisions.* 

Judgment  must  be  for  acquittal  whenever  defendant  has 
not  been  fully  convicted  of  the  charge.  No  mere  proba- 
bility, however  great,  will  justify  the  judge  to  condemn 
the  accused.  Formerly,  if  the  court  was  not  satisfied  as 
to  the  innocence  of  the  accused,  but  yet  had  no  sufficient 
evidence  to  convict  him,  the  sentence  would  be  non  est  ^ 
repertus  culpabilis  ex  hactenns  dcdiictis  or  stantibus  rebus 
prout  stant  or  ob  probationum  defectum.  By  such  an 
acquittal  defendant  was  liable  to  be  called  up  at  any 
time  by  the  same  court  for  another  trial  on  the  self- 
same charge  before  that  sentence  became  res  Judicata* 

'  This,  however,  should  be  stated  in  the  judgment. 

'  Sanfi,  h.  t.  n.  11;  /^ofa,  n.  737.  The  judge  must  be  very  careful  not 
to  set  forth  any  reasons  not  fully  supported  by  judicial  evidence  or  giv- 
ing cause  for  legal  exceptions. 

»  AJP.,  XIII.  53,  IS5. 

*  The  C. /.  Can.,  h.  t.,  treats  also  of  the  res  judicata.  This  phrase 
means  that  the  judgment  given  by  a  competent  court  on  some  issue  has 
become  absolutely  binding  and  conclusive;  the  cause  is  definitely  termi- 
nated and  nothing  more  can  be  done  in  the  matter.  Hence  the  axiom  in  law 
that  rei  judicata  pro  veritate  accipitur;  no  appeal  or  objection  or  recourse 


Various  Matters.  141 

Z?r<7j/^  maintains  that  at  present  such  a  qualified  acquittal 
is  no  longer  customary,  but  exclusively  reserved  for  case 
of  murder.*  Hence  nowadays  such  sentence  should  be 
by  the  clause  ex  capite  innocentiae  or  simpliciter  non  reper- 
tus  culpabilis,  by  which  defendant  is  acquitted  once  for 
all  as  non  ulterius  molestandus^ 


CHAPTER  VI. 

VARIOUS     MATTERS. 


84.  According  to  the  Instriictio  the  procedure  is  alto- 
gether a  written  one.  The  depositions  of  witnesses  and 
of  the  accused  are  immediately  reduced  to  writing.  As 
each  witness  and  the  accused  are  examined  separately  and 
alone  by  the  judge,  it  appears  but  just  that  the  judicial 
acts  performed  by  him  from  the  citation  to  the  sentence 
be  recorded  in  writing,  in  order  that  he  be  under  the  con- 
trol of  the  accused  as  well  as  of  the  superior  court.  If  the 
recording  is  entirely  omitted,  the  proceeding  is  void.  The 
Instruction*  at  the  same  time  recognizes  the  advantages 
which  parol  proceeding  possesses  on  account  of  its  direct- 

against  it  will  be  listened  to.  Only  the  Pope  {princeps)  can  ex  speciali 
gratia  grant  a  new  hearing  in  the  case.  Res  judicata,  as  the  civilians 
say,  is  of  such  a  legal  strength  ut  de  ente  facial  non-ens,  de  /also  verum, 
et  de  albo  nigrum  {Reiffenstuel,  h.  t.  §  IV.  n.  105  sqq).  According  to 
Canon  law  the  condemnatory  criminal  sentence  (verdict  of  guilty)  never 
becomes  res  judicata  in  the  sense  that  the  convict  would  be  debarred 
from  having  the  sentence  reversed  at  any  lime,  when  he  is  able  to  estab- 
lish his  innocence.  But  an  acquittal  does,  and  becomes  a  bar  to  another 
prosecution  on  the  same  charge. 

'  He  refers  to  a  decision  of  11  Sept.  1804  in  the  AJP.,  xiu.  53,  137, 
XX.  86,  XXXIV. 

*  S.  C.  Epp.,  II  Sept.  1818.  AJP.,  XX.  456;  Rota,  n.  743.  See  also 
StremUr,  p.  163  f.  »  L'Ordinario. 


142         Forms  and  Parts  of  the  Procedure. 

ness.  Hence  the  accused  may  defend  himself  not  only  in 
writing,  but  orally  too  ;  his  counsel,  after  filing  the  written 
defence,  is  not  prevented  from  making  an  oral  address; 
finally,  the  fiscal  prosecutor  also  may  deliver  his  address 
orally  (arts.  34,  35).  An  oral  address  of  the  defender 
in  addition  to  the  written  defence  is  not  usual  in  the  pro- 
cedure of  the  Roman  Congregations,"  though  in  criminal 
cases  exceptions  are  sometimes  allowed.* 

Counsel  of  the  accused  may  cause  the  defence  to  be 
printed  and  thus  presented  to  the  judge  without  losing 
the  right  of  oral  argument."  Before  causing  it  to  be 
printed,  however,  he  must  have  the  imprimatur  of  the 
court  ;  the  latter  also  determines  how  many  copies  shall 
be  printed,  takes  the  copies  in  charge,  distributes  them 
among  the  judges,  and  gives  a  copy  to  the  defender.  If, 
however,  the  court  requires  certain  passages  of  the  paper 
to  be  eliminated  before  printing,  and  if,  on  the  other 
hand,  the  defender  will  not  submit  thereto,  tljen  the  court 
must  send  the  manuscript  to  the  S.  C.  of  Bishops  at 
Rome,  who  will  decide  the  matter.* 

85.  The  sittings  and  transactions  of  ecclesiastical  courts, 
even  for  the  purpose  of  rendering  judgment,  are  as  a 
rule  not  public'     Our  Instruction  does  not  directly  for- 

'  I  Dec.  1732.    AJP.,  XI.  791,  289.  '  AJP.,  XX.  164,  xxiit. 

2  S.  C.  Epp.,  3  Jan.  1820.     AJP.,  xiii.  51,  120. 

*  S.  C.  Epp.,  March  1858.  AJP.,  xni.  1076;  xx.  168,  xxii.  This  para- 
graph remains  eruditionis  causa.  We  believe  it  to  be  the  intention  of  the 
Cum  Magnopere  to  keep  out  from  the  proceeding  any  regular /a/w/ plead- 
ing either  on  the  part  of  the  fiscal  procurator  or  on  that  of  defendant. 
The  charge  as  well  as  the  defence  must  be  in  writing.  When  the  Acta 
S.  S.,  XV.  395,  say  that  the  defence  may  not  be  handed  to  the  judge  in 
print  (iy/>is).  because  art.  32  expressly  mentions  a  written  paper  (scrip/is 
foliis),  we  consider  such  reasoning  hypercritical.  In  the  two  Instruc- 
tions of  1878  and  1880  the  term  in  scriptis  is  evidently  not  opposed  to 
typis.  but  to  verbis  or  parol  pleading.  To  what  class  would  the  Acta 
consign  the  type-writer's  work,  to  type  or  writ  ? 

*  AJP.,  XIV.  973,  41. 


Various  Matters.  143 

bid  publicity  ;  but  that  it  contemplated  only  secret  pro- 
ceedings is  shown  by  the  fact  that  the  witnesses  (arts.  8, 
18)  as  well  as  the  defender  (art,  32)  may  be  sworn  to 
secrecy.  It  is  advisable,  in  the  interest  of  the  trial  itself, 
to  prevent  publicity  at  least  of  the  offensive  proceeding ; 
but  to  avoid  any  possible  scandal  it  is  best  that  the  whole 
proceeding  be  secret. 

Tile  language  of  the  court  is  to  be  the  vernacular  ;  the 
witnesses  are  to  be  examined  in  the  language  in  which 
they  are  fluent ;  in  case  of  necessity  an  interpreter  is  to 
be  called,  who  must  however  be  sworn.  In  the  last 
century  the  questions  were  still  put  in  Latin  and  then  re- 
peated in  the  corresponding  vernacular.  But  the  custom 
was  abolished  in  1800  by  Pius  VII.' 

As  a  place  of  holding  court  may  serve  the  building 
erected  for  that  purpose,  the  bishop's  or  priest's  residence, 
or  any  other  place  enjoying  ecclesiastical  immunity.*  But 
it  is  also  allowable  and  valid  to  perform  all  criminal  juris- 
dictional acts,  to  examine  witnesses,  to  write  the  acts, 
nay,  even  to  give  judgment,  in  any  other  place,  whether 
exempt  or  not,  provided  it  be  not  sacer  in  the  canonical 
sense.*  The  auditor  may  examine  witnesses  in  hospitals, 
convents,  or  in  privileged  places,  when  the  witnesses  are 
not  allowed  to  leave  these  places.*  Parochial  records  and 
documents  may  also  be  examined  in  the  church.* 

As  regards  the  time  of  the  proceeding,  the  judicial 
days,  the  terms  must  not  be  set  or  held  upon  Sundays 
and  Holy-days. 

'  Cst.  *'  Post  diuturnas."  *  S.  C.  Imm.,  3  June  1S28. 

'  S.  C.  Imm.,  21  Jan.  1821;  14  July,  1830. 

*  S.  C.  Imm.,  9  June  1828. 

*  S.  C.  Imm.,  26  Sept.  1823.  See  these  and  other  documents  on  the 
subjects  in  AJP.,  xiil.  48,  and  De  Montault. 


SECTION  II. 

THE   CANONICAL  PRACTICE, 


CHAPTER  I. 

EXTRAJUDICIAL  ACTS. 

Art.  I.  Canonical  Admonitions. 

86*.  Observation. — The  subject  and  arrangement  of 
the  present  chapter  require  a  few  explanations.  The 
author,  we  are  convinced,  has  fallen  into  a  grievous  mis- 
take by  making  the  monitio  canonica  a  strictly  judicial 
proceeding  as  distinguished  from  the  extrajudicial  or 
paternal  admonition.  He  was  probably  led  to  it  by  con- 
founding an  official  and  formal  or  legal  proceeding  with 
a  judicial  one.  Moreover,  with  him  the  monitio  canonica 
seems  to  be  the  same  as  the  praeceptum,  another  mistake 
which  may  have  arisen  from  confounding  such  monitio 
with  the  monitorium  frequently  mentioned  by  canonists, 
and  which  corresponds  to  a  mandatory  writ  of  the  court 
or  a  public  episcopal  edict  commanding  something  under 
commination  of  excommunication.'  To  guard  against 
these  mistakes  we  shall  in  this  article  treat  of  canonical 
admonitions,  whether  paternal  or  legal  *  (art.  6),  and  in 

'  Cfr.  Ferraris,  s.  v. ;  Collet,  de  censuris,  ap.  Migne,  Curs.  Theol.  Compl. 
XVII.  p.  144  sqq. 

'  We  fully  agree  if  some  one  prefer  to  call  this  legal  admonition  the 
canonical  one  par  exeellence,  yet  so  he  do  not  deny  the  official  or  canoni- 
cal nature  of  the  paternal  one.  In  this  sense  we  read  C.  PI.  B.  III. 
n.  309.     Cfr.  Stremltr,  p.  206  ff. 


Extrajudicial  A  cts.  1 4  5 

the  next  of  canonical  precepts  or  injunctions,  as  of  extra- 
judicial although  assuredly  official  and  jurisdictional  pro- 
ceedings. Again,  the  author  seems  to  restrict  the  use  of 
admonitions  and  injunctions  too  much  to  cases  where  a 
crime  or  at  least  a  delict  has  already  been  committed. 
Now  we  are  far  from  denying  what  is  held  by  every  one ; 
viz.  that  even  where  the  bishop  has  positive  and  certain 
knowledge  of  a  transgression  of  the  law,  he  is  still  at 
liberty  according  to  his  good  judgment,  prudence  and 
charity,  not  to  proceed  at  once  to  a  judicial  trial,  but  to 
try  admonitions  and  salutary  extrajudicial  precepts,  or 
even  light  corrective  penances.  This  discretion  seems  to 
be  explicitly  granted  by  the  Instr.y  art.  3.  Nay,  even  if 
a  cleric  were  convicted  by  regular  trial,  the  object  of 
the  sentence  might  be  some  one  of  those  extrajudicial 
acts;  e.g.  an  official  reprimand,  a  special  injunction 
the  privation  of  some  privilege,  some  particular  pen- 
ance, or  the  spiritual  retreat.'  Still  the  Instr.,  art.  2, 
clearly  teaches  that  the  main  object  of  those  extrajudi- 
cial acts  is  to  prevent  transgressions  by  removing  their 
occasions  and  proximate  causes.  In  fact,  the  author  ac- 
knowledges as  much  with  regard  to  the  paternal  admoni- 
tion. The  Instruction,  however,  makes  no  such  restric- 
tion ;  nor  do  canonists.'  But  they  allow  the  bishop  to 
make  use  of  these  means  also,  when  he  has  some  well- 
founded  suspicion  {indicia  hand  levid)  or  pretty  good 
though  uncertain  evidence  {semi-proof)  of  some  delict." 
'  Cfr.  Rota,  n.  613. 

*  Acta  S.  S.,  XV.  379;  Pieranton.,  1.  c,  n.  5.  13. 

*  Cfr.  the  lucid  exposition  by  Pierantonelli.  tit.  3.  n.  15  sqq  The  more  we 
read  the  more  it  appears  to  us  that  it  is  a  serious  mistake  to  confound  our 
canonical  admonitions  here  spoken  of  with  that  famous  trina  monitio  which 
must  be  made  before  an  ecclesiastical  censure,  especially  excommunica- 
tion, can  be  inflicted  as  a  corrective  {medicinalis)  punishment.  We  think  it 
equally  false  to  simply  apply  to  our  admonitions  what  canonists  require 
for  that  one.  Such  writers  forget  that  what  holds  in  a  sjjecial  case  docs 
not  thereby  apply  universally.     On  that  monitio  see  a  full  exposition  in 

10 


146  The  Practice. 

Finally,  it  seems  unnecessary  to  say  that  these  canoni- 
cal admonitions  may,  according  to  the  different  circum- 
stances and  needs  of  the  case,  take  the  form  of  advice 
and  counsel,  warning  and  caution,  or  of  correction,  re- 
buke, and  reprimand,  in  a  milder  or  severer  manner.' 

87.  The  remote  condition  for  canonical  admonitions  is 
either  a  delict  committed  by  some  cleric,  or  such  mode 
and  habit  of  life  as  is  inconsistent  with  the  dignity  and 
decorum  of  clerical  orders,  or  a  conduct  which  is  detri- 
mental to  any  efficient  pastoral  work,  or,  finally,  such 
voluntary  occasions  that  may  lead  him  to  scandalous  sins. 
All  these  are  sufficient  grounds  for  the  bishop  to  proceed 
extrajudicially  against  such  a  cleric,  as  soon  as  he  is  suf- 
ficiently informed  of  their  existence.  This  knowledge 
the  bishop  may  obtain  in  different  ways  :  by  information 
from  ecclesiastics  or  laics;  from  superiors  or  subjects  of 
the  offender ;  through  complaints  from  individuals  or 
from  a  whole  congregation  ;  or  also  by  immediate  per- 
sonal observation  especially  upon  visitations.  How  he 
actually  obtains  it  in  each  individual  case  is,  therefore, 
merely  a  question  of  fact.  Yet  the  bishop  may  not  pro- 
ceed at  once  upon  such  information.  He  must  first  in- 
quire into  the  truth  of  it,"  or,  as  the  Instrnctio  says,  insti- 
tute a  summary  inquest  {summaria  facti  cognitio,  art.  5). 
The  matter  of  the  fact  is  to  be  determined  very  simply 
and  without  any  formality ;  in  many  cases  the  fact  is 

Collet,  1.  c,  p.  46  sqq. ;  a  shorter  one  in  Pierantonelli,  tit.  6,  n.  15  sqq. 
Commentators  may  be  consulted  on  canonical  admonitions  under  tit.  i, 
1.  v.,  where  they  speak  of  the  evangelical  denunciation  and  the  consequent 
duty  of  the  bishop  to  proceed  to  paternal  corrections.  See  Sfhmalzgr,, 
tit.  c,  n.  148. 

'  Corripiantur  itaque  a  praepositis  suis  subdiii  fratres  correptionibus  de 
cofitate  venientibus  pro  culparum  diversitate  diversis,  vel  minoribus  vel 
aniplioribus .  c.  17,  C.  24,  q.  3 — In  accordance  with  the  foregoing  re- 
marks we  have  changed  some  of  the  author's  assertions  in  the  following 
two  articles,  others  we  have  omitted  as  too  diffuse. 

*  c.  31,  X.,  V.  3. 


Extrajudicial  A ds.  1 4  7 

clear  from  the  very  beginning,  as  when  the  bishop  him- 
self notices  reprehensible  acts  or  a  condition  of  things 
that  is  to  be  censured,  for  instance,  disorder  in  the  records 
or  accounts  of  the  church ;  in  others,  again,  the  proof  is 
more  difficult,  and  the  bishop  must  examine  witnesses 
and  experts.  But  such  examination  must  not  be  made 
in  public  or  in  judicial  form,  as  any  judicial  proceeding 
must  be  carefully  avoided.'  In  ascertaining  the  fact  as  to 
a  supposed  delict,  the  bishop  should  proceed  with  great 
caution,  lest  he  unnecessarily  injure  an  ecclesiastic  and 
from  outward  appearances  consider  and  treat  him  as 
guilty  before  his  offence  has  been  proved.''  Such  a  rash 
proceeding  would  of  itself  justify  a  recourse  to  Rome 
which  would  be  successful  where  the  injurious  treatment 
could  not  be  justified  by  the  subsequent  conviction  of  the 
complainant.     Not  until   the   fact   has  been  sufficiently 

'  This  confirms  what  we  said  above  in  the  note  on  p.  53  ;  viz.  the  In- 
tiructio  speaks  of  two  different  special  inquiries,  one  extrajudicial,  which 
may  be  compared  to  the  sheriff's  or  coroner's  inquest  in  our  Common  law, 
the  other  strictly  judicial,  which  corresponds  to  the  trial  before  the  grand 
jury.  If  a  true  bill  or  indictment  be  found,  then  the  trial  before  the 
court  or  petit  jury  begins,  to  which  corresponds  the  final  proceeding  of 
our  Instruction,  art.  30  ff.  We  consider  it,  therefore,  as  another  serious 
mistake  when  modern  writers,  e.g.  Rota,  apply  equally  to  the  preliminary 
summary  inquest  {inquisitio  pro  notitia  curiae)  what  commentators  have 
written  per  longum  et  latum  on  the  judicial  inquisition  0/  the  C.  J.  Can.,  1. 
V.  tit.  I.  Hence  Pierantonelli,  tit.  3.  n.  15.  unhesitatingly  says  :  Ex prae- 
tnissis  erumpit  inquisitionem  noslram  longe  differre  ab  inquisitione  de  qua 
ttgiturjure  Decretnlium.  See  also  the  Acta  S.  S.,  XV.  379.  This  pre- 
liminary inquest  is  also  called  informatio  pracparatyria  ( Van  Espen,  p. 
ni.  tit.  8,  c.  I,  n.  37).  Stremler  very  properly  calls  it  Fenquele  patemelle 
(P-  138  ff). 

'  As  regards  this  preliminary  inquest,  the  bishop  may  direct  it  himself 
or  commission  a  trustworthy,  prudent,  and  impartial  ecclesiastic  to  do  it. 
The  whole  proceeding  must  be  as  quiet  and  secret  as  possible,  especially 
with  regard  to  witnesses.  The  acts  with  the  result  of  the  inquest  must 
be  kept  in  the  archives,  if  any  evidence  have  been  found  {Acta  S.  S., 
XV.  380).  If  evidence  be  lacking,  or  if  it  be  only  slight,  the  acts  ought 
to  be  destroyed. 


148  The  Practice. 

ascertained  and  determined  can  the  bishop  decide  how  to 
proceed,  whether  in  extrajudicial  or  judicial  form.  As  a 
result  the  bishop  may  immediately  order  his  fiscal  procura- 
tor to  institute  judicial  proceedings,  or  under  certain  cir- 
cumstances he  may  direct  his  vicar-general  to  immediately 
lay  a  canonical  injunction  upon  the  accused,  perhaps  be- 
cause he  sees  periculuin  in  mora  '  or  knows  mere  admoni 
tions  to  be  useless  in  the  case.  On  the  other  hand,  he 
may  often  be  forced  by  circumstances  to  confine  himself 
to  canonical  admonitions,  especially  when  for  good 
reasons,  moral  or  physical,  he  cannot  proceed  judicially." 
88.  Though  the  bishop  may  have  sufficient  reasons  to 
officially  admonish,  correct  or  reprove  a  cleric,  it  will  be 
better  first  to  hear  the  delinquent  himself  in  regard  to  his 
offence.  The  bishop  may  tell  him  the  charge  pending 
against  him.  He  may  also  acquaint  him  with  some  of 
the  evidence,  although  to  communicate  to  him  the  names 
and  depositions  of  the  witnesses,  if  any  have  been  ex- 
amined, would  not  be  advisable,'  That  the  accused 
should  be  allowed  to  defend  himself  is  evident.  It  is  in 
the  nature  of  such  informal  proceeding  that  the  defence 

'  Kota,  n.  643. 

^  It  is  evident  that  in  the  author's  opinion  the  bishop  may  at  once  in- 
stitute criminal  proceedings  if  he  has  sufficient  proof  of  the  delict,  and 
that  he  is  not  bound  first  to  make  use  of  the  extrajudicial  corrective 
means.  In  this  he  is  supported  by  Fierantonelli,  tit.  3,  n.  18,  16.  20.  It 
also  seems  implied  in  Instr.,  arts.  3,  10,  11;  nor  is  there  anything  in  the 
Instruction  to  prove  the  contrary,  although  that  is  maintained  by  the 
Acta  S.  S.,  1.  c,  Sind  Rota,  who  probably  were  misled  by  art.  7.  We  think 
the  sense  of  the  Instruction  is  nicely  stated  by  the  Council  of  Baltimore, 
which  says:  Si  ulterius procedere  debet,  et  natura  ac  gravitas  abusus  vel 
delicti  de  quo  inquirit  sinit,  non  statim  ad  processum  judicialem  transeat, 
sed  viodo  extrajudiciali  media  adhibeat  praeventiva  etc.  (n.  3og).  The 
rule,  therefore,  is,  that  the  bishop  should  not  proceed  to  a  trial  as  long 
as  there  is  no  necessity,  or  where  there  is  a  chance  to  remedy  the  evil 
otherwise.     Horrct  enim  Ecclesia  judiciorum  amia. 

«  C.  PI.  B.  III.,  n.  309;  Acta  S.  S.,  XV.  380;  Pierant.,  tit.  3  n.  16. 
Droste  maintains  the  contrary. 


Extrajudicial  Acts.  1 49 

may  frequently  come  only  after  the  admonition.  In  such 
cases  the  defence  will  mostly  consist  in  explaining  one's 
conduct  or  action;  e.g.  that  under  the  particular  circum- 
stances he  had  to  act  as  he  did,  and  perhaps  that  even  in 
future  he  cannot  do  otherwise. 

If  the  accused  or  suspected  cleric  cannot  fully  clear 
himself  of  the  charge,  corrective  measures  are  to  be  used. 
The  first  are  canonical  admonitions.  Such  warnings,  in- 
structions and  corrections  are  especially  appropriate  when 
a  fault  or  delict  has  not  been  fully  proved,  but  where  a 
well-founded  suspicion  still  remains ;  the  more  as  these 
measures  cannot  properly  be  called  punishments.  In- 
structions and  admonitions  in  general  can  be  given  even 
without  any  previous  fault,  and  spiritual  exercises  are 
looked  upon  rather  as  good  works  to  be  performed  than 
as  an  evil  to  be  endured.  In  such  cases,  however,  the 
bishop  must  take  care  lest  in  his  words  and  manner  he 
presume  the  guilt  of  the  party  concerned.'  It  is  evident 
that  every  admonition  should  have  its  own  particular 
object,  and  ought  to  be  clear  and  precise.  In  some  cases 
it  will  refer  to  the  proper  fulfilment  of  obligations  al- 
ready existing  or  to  the  avoidance  of  improper  conduct : 
e.g.  to  observe  the  law  of  canonical  residence,  not  to  re- 
main out  too  long  at  nights,  to  avoid  certain  places,  etc. 
It  is  against  the  nature  of  canonical  admonitions  to  im- 
pose any  punishments  in  the  proper  sense.  Their  main 
object  is  to  remove  voluntary  occasions  of  delicts,  and  to 
repress  sinful  habits.  It  is  equally  against  the  spirit  of 
ecclesiastical  criminal  law  immediately  to  inflict  strict 
punishments  in  these  cases,  without  first  having  at- 
tempted milder  remedies.'  It  is  different,  of  course,  in 
case  of  a  serious  fault  or  delict  fully  proved. 

'  AJP..  XII.  836.  726. 

'  The  admonition  should  not  even  threaten  punishment.  Cfr.  n.  309 
C.  PI.  B.  III. 


T  50  The  Practice. 

89.  It  has  been  remarked  above  that  the  Instr.,  art.  6, 
distinguishes  two  different  canonical  admonitions,  one 
^2i\.Qxna\  {in  forma  pater  ?ia  ct  seer  eta),  \.]\q  oth^r  legal  {in 
forma  legalis)  or  strictly  canonical.  The  very  distinction 
indicates  that  paternal  charity  and  mildness  are  the  char- 
acteristic features  of  the  first.  Hence  the  bishop  will  as 
a  rule  personally '  give  this  admonition,  according  to  the 
direction  of  our  Divine  Master:  "If  thy  brother  shall 
offend  against  thee,  go  and  rebuke  him  between  thee  and 
hiai  alone."  *  He  will  instruct  and  admonish  the  delin- 
quent either  in  writing  or  by  word  of  mouth,  but  as 
secretly  as  possible,  in  order  to  show  by  the  very  form 
and  in  his  manner  that  he  is  acting  as  father,  not  as  judge.  1 
Art.  6  allows  the  bishops  to  employ  a  middle  person  ;  but 
he  should  not  avail  himself  of  this  right,  except  for  rea- 
sons which  make  it  appear  necessary  or  advisable.'  He 
should  not  employ  for  that  purpose  his  vicar-general  or 
Official,  as  the  proceeding  would  by  reason  of  that  alone 
smack  too  much  of  the  judge.*  It  is  also  strictly  forbid- 
den, both  legally  and  morally,  to  enter  a  paternal  admoni- 
tion on  the  records  of  the  chancery.  The  bishop  must 
make  a  private  note  of  it,"  in  order  to  justify  himself  in 
case  of  a  recourse,  but  even  charity  forbids  him  to  make 
it  public. 

90*.  Formal  or  strictly  canonical  admonitions  may  be 
given  either  at  once  before  any  paternal  monition,  if  the 
bishop  consider  it  necessary,'  or  only  in  case  where  the 

'  AJP.,  XIX.  1120. 

*  Matt,  xviii.  15. 

'The  Acta  S.  S.,  xv.  p.  381,  remark  that  the  person  thus  employed 
should  be  from  among  those  who  by  their  piety  as  well  as  learning  and 
practical  knowledge  are  among  the  best  of  the  clergy. 

*  Rota,  634. 

'  If  the  admonition  was  made  by  another,  he  must  certify  to  it,  and  the 
bishop  will  keep  that  certificate. 

*  Acta  S.  S.,  XV.  381. 


Extrajudicial  Acts,  1 5 1 

accused  cleric  makes  light  of  the  paternal  correction  given 
to  him,  or  even  refuses  to  accept  it.  It  is  not  difficult  to  see 
wherein  these  differ  from  that.  There  the  bishop  advises 
and  corrects  as  father  and  in  secret ;  here  he  corrects  and 
reproves  as  the  custodian  of  the  law,  or  as  civilians  would 
say,  qua  impcrium  liabens.  Hence  the  form  of  such 
canonical  admonition  is  called  legal,  i.e.  according  to  law 
with  legal  formalities,  and  therefore  no  longer  secret  but 
before  witnesses.  There  is  no  difficulty  in  these  points, 
when  the  accused  appears  personally  before  the  bishop 
or  before  the  person  commissioned  by  the  bishop,  which 
commission  in  this  case  must  be  in  writing  and  shown  to 
the  party  to  be  reprimanded.  But  when  this  admonition 
is  given  by  letter,  the  document  ought  to  be  formal,  i.e. 
signed  by  the  chancellor  or  notary  (not  merely  by  the 
private  secretary).  If  sent  by  messenger,  the  delivery 
ought  to  be  sworn  to  as  in  case  of  a  judicial  citation  ;  if 
by  mail,  it  must  be  registered.  The  whole  transaction 
is  to  be  recorded  in  the  chancery.  This  is  the  reason 
why  it  is  no  longer  called  a  secret  admonition,  because 
it  becomes  known  to  the  law,  although  it  is  still  to  be 
kept  secret  from  the  public. 

This  formal  or  legal  admonition  is  also  to  be  a  mere 
correction  or  reproof ;  however  severe  or  strong,  it  should 
not  contain  any  threat  of  punishment  properly  so  called  in 
whatever  shape.  Canonists  seem  to  restrict  such  commina- 
tion  to  the  canonical  precept  or  injunction.  The  sole 
object  of  this  monitio  is  to  correct  the  accused  and  to 
warn  him  to  beware  lest  worse  ensue.  The  formalities 
observed  in  the  proceeding  are  for  the  purpose  of  making 
it  more  impressive,  and  moreover  of  providing  ready 
proof  of  his  obstinacy,  if  he  refuse  to  amend.  By  these 
it  may  afterwards  be  shown  that  the  admonition  was 
formally  addressed  to  the  delinquent ;  the  presence  of 


152  The  Practice. 

witnesses  has  really  no  other  object.*  But  in  order  not 
to  injure  unnecessarily  the  reputation  of  the  person  ad- 
monished, the  witnesses  may  be  sworn  to  secrecy. 

Finally,  we  should  like  to  call  the  attention  of  all  whom 
it  may  concern  to  the  beautiful  discourse  in  which  Rota, 
n.  637  sqq.,  explains  the  four  qualities  that  St.  Liguori 
demands  for  such  official  admonitions.  They  are  chari' 
tableness,  prudence,  opportuneness,  and  secrecy. 

Art.  II.  Canonical  Injunctions. 

91.  The  canonical  injunction"  is  a  jurisdictional  and  pub- 
lic act  like  the  official  admonition.  It  stands  in  the  same 
relation  to  criminal  procedure  as  the  general  penal  law 
does,  except  that  it  is  special  criminal  legislation.  When 
the  bishop  is  informed  of  the  irregular  conduct  of  some 
cleric  or  of  other  faults  and  dangerous  occasions  of  his 
clerical  inferior,  or  has  found  canonical  admonitions  to  be 
of  no  avail  in  correcting  him,  or  positively  knows  from 
the  outset  that  they  will  be  disregarded,  he  will  give  a 
special  command  to  that  cleric  telling  him  what  to  do  or 
to  avoid  or  how  to  shape  his  conduct  in  the  future,  sanc- 
tioning that  command  by  the  commination  of  a  certain 
and  clearly  determined  punishment  in  case  of  disobedience 
(art.  7).  This  punishment,  however,  is  always  ferendae 
sententiae ;  and  even  where  for  the  fault  or  delict  to  be 
corrected  a  certain  punishment  is  already  fixed  by  law, 
the  same  may  be  threatened  by  the  injunction  whenever 

»c.  48,  X.,  V.  38. 

'  Webster  defines  an  injunction  in  law  to  be  a  writ  or  process,  ordered 
by  authority,  whereby  a  party  is  required  to  do  or  to  refrain  from  doing 
certain  acts.  It  is,  however,  more  generally  used  as  a  preventive  than 
as  a  restorative  process,  although  not  confined  to  the  former.  This  ex- 
actly covers  ihe  praecepium  caiionicum.  The  Instr.  ca.\\s\X.pr.analogum, 
which  only  means  that  the  injunction  refers  to  the  same  object  or  acts  as 
the  previous  admonitions.  Cfr.  on  the  present  subject  jRota,  n.  642  sqq.; 
Pierantonelli ,  tit.  3,  n.  20. 


Extrajudicial  A  cts.  1 5  3 

it  will  not  ipso  facto  be  incurred,  but  must  be  inflicted 
by  the  Ordinary.  Such  special  commands  will  mostly  be 
necessary  in  cases  or  conditions  that  cannot  be  regulated 
by  general  laws  in  such  a  way  that  one  could  not  success- 
fully circumvent  those  same  laws.  Hence  the  necessity 
of  these  special  canonical  injunctions  whether  mandatory 
or  prohibitory  for  special  cases  according  to  particular  cir- 
cumstances. 

If  the  law  forbids  a  superior  to  give  canonical  admoni- 
tions without  good  reasons  for  doing  so,  it  is  evident  that 
greater  reasons  are  required  to  issue  a  canonical  injunc- 
tion,' and  this  the  more  when  there  is  question  of  other 
persons  on  whose  account  the  injunction  is  laid  on  the 
cleric.  In  such  cases  the  greatest  precaution  is  required,* 
even  when  the  summary  inquest  that  must  precede  the 
action'  has  revealed  good  and  sufficient  grounds.  Such 
would  be  the  case,  e.g.,  if  a  cleric  were  forbidden  for  cause 
from  visiting,  except  in  case  of  necessity,  certain  persons, 
houses  or  places  (the  so-called  praeceptum  de  nan  frequen- 
tando).  If  in  such  a  case  an  injunction  has  been  unneces- 
sarily and  unjustly  issued,  the  S.  Congregation  will  upon 
appeal  deal  severely  with  the  appellee.* 

92.  How  the  bishop  shall  proceed  in  issuing  a  canoni- 
cal injunction,  the  Instr.  explains  in  art.  8.  He  will  first 
cite  {praevenire)  the  delinquent  by  an  official  summons  to 
appear  at  a  stated  term  to  hear  the  injunction.  This 
does  not  prevent  the  accused  from  defending  himself 
meanwhile,  but  rather  offers  him  an  opportunity  to  do  so, 
if  there  be  any  chance,  and  thus  avoid  further  proceed- 
ing.    But  if  he  cannot  make  any  good  defence,  and  ap- 

•  Rota,  1.  c. 

'  The  warning  given  in  the  Instr.  1878    at  the  end  of  art.  5   applies 
here  as  well.     See  Appendix. 
'  S.  C.  Epp.,  14  Jan.  1817.     AJP.,  x.x.  452,  v. 
*S.  C.  Epp.,  1731.     AJP.,  XIX.  1120,  IX. 


154  The  Practice. 

pear  at  the  appointed  time,  the  injunction  will  be  read 
to  him  by  the  chancellor  in  presence  of  the  vicar-general 
or  of  two  ecclesiastics  or  two  laymen  of  known  integrity. 
The  record  or  minute  of  the  transaction  is  to  be  signed 
by  the  parties  present,  also  by  delinquent  although  he  is 
not  bound  to  do  so.'  This  record  is  to  be  filed  in  the 
chancery.  The  reason  of  these  formalities  is  evidently 
the  same  as  in  case  of  formal  admonitions. 

The  canonical  injunction  is  to  be  drawn  up  in  writing. 
It  must  contain  the  name  of  the  person  issuing  it  (the 
bishop),  the  name  of  the  guilty  party,  the  precept,  i.e. 
what  delinquent  must  do  or  omit,  and  finally  the  sanction, 
i.e.  the  punishment,  which  will  be  inflicted  upon  him  if 
he  does  not  comply  with  the  precept.  The  sanction,  as  a 
rule,  will  be  excommunication,  suspension,  or  recall  of 
faculties,  but  may  also  be  a  pecuniary  or  other  canonical 
punishment.'  Punishments  in  siibsidium  may  at  the 
same  time  be  threatened,  for  instance,  censures  in  case 
a  pecuniary  penalty  inflicted  should  not  be  paid.^ 

Injunctions  of  this  kind,  evidently,  are  not  all  honorable, 
especially  as  the  presumption  is  that  delinquent  has  pre- 
viously received  canonical  admonitions  in  vain.  Yet,  as 
it  is  not  intended  to  dishonor  or  degrade  him  before 
others,  but  to  correct  and  reform  him,  the  process  should 
be  served  on  him  as  secretly  and  privately  as  possible 
within  the  form  prescribed.*     If  the  accused  does  not  ap- 

'  Whether  delinquent  has  a  right  to  demand  a  copy  of  the  injunction, 
or  whether  it  would  be  advisable  to  give  him  such  a  copy,  even  if  not 
demanded,  we  dare  not  decide  As  the  whole  proceeding  is  extrajudicial. 
we  are  inclined  to  answer  thus:  To  the  first,  distingtio:  a  simple  copy  or 
mere  memorandum,  granted;  an  authenticated  copy,  denied.  The  same 
answer  to  the  second  query. 

^  AJP..XIX.  1118,  V. 

'  S.  C.  Epp.,  Dec.  1734.     AJP..  xix.  1122.  xii. 

*  For  the  same  reason  the  precept  itself  ought  to  be  of  such  a  nature 
that  by  obeying  it  the  person  may  not  give  cause  for  public  suspicions 
and  rumors.     Pierant.,  tit.  3,  n.  20;  Rota,  n.  645. 


Extrajudicial  Acts.  1 5  5 

pear  at  the  appointed  term,  the  reason  for  his  non-appear- 
ance must  in  the  first  place  be  ascertained.'  If  it  appear 
to  be  a  case  of  contumacy  the  injunction  may  be  sent  to 
him  in  writing.  In  this  case  we  should  indeed  try  to 
obtain  from  him  a  note  certifying  that  he  had  received 
the  document ;  however,  he  will  most  likely  refuse  to 
accept  the  letter,  and,  of  course,  give  no  receipt  therefor. 
In  that  case  the  paper  may  be  left  at  his  residence,  or,  if 
he  have  no  residence,  may  be  posted  on  the  church  door 
or  in  some  pubh'c  place.' 

Like  every  other  law,  the  canonical  injunction  has  a 
definite  time  when  and  for  which  it  begins  to  operate.  A 
certain  time  is  given  to  the  delinquent  within  which  he 
must  comply  with  the  precept,  otherwise  the  special  pun- 
ishment will  be  pronounced  and  executed,  and  judicial 
proceedings  begun.*  Canon  law  requires  that  the  canonical 
monition  shall  be  repeated  three  times  before  the  punish- 
ment therein  fixed  be  actually  inflicted.  But  if  there  are 
reasons  which  make  it  proper  to  give  it  but  once,  the 
monitio  itself  must  expressly  state  that  it  is  the  first  and 
last.  Canonists  require  a  term  of  at  least  two  days  for 
each  of  the  three  admonitions,  so  that  in  the  case  of  a 
single  peremptory  monition  six  days  will  have  to  elapse 
before  the  threatened  punishment  can  be  inflicted.* 

'  Why  not  send  a  second,  but  peremptory  summons? 

*  What  an  antiquated  notion,  especially  for  us  Americans  !  Why  will 
sensible  men  still  clinp  to  those  old  methods  of  canonical  procedure,  civil 
or  criminal,  that  are  out  of  all  harmony  with  present  times  and  minds? 
If  with  us  neither  messenger  nor  registered  letter  can  reach  ihe  person 
wanted  in  proper  time,  we  should  conclude  at  once  that  there  is  a  casus 
notorius  of  something  wrong,  and  further  action  clear. 

»C.  PI.  B   III.,n.  3og. 

*  We  remarked  in  n.  86  that  to  our  mind  the  canonical  admonitions  of  our 
Instruction  are  not  of  the  same  nature  as  the  trina  monitio  here  spoken 
of.  The  same  we  hold  in  regard  to  the  canonical  injunction,  which  seems 
to  us  to  be  peremptory  by  its  very  nature,  at  least  when  following  pre- 
vious admonitions. 


156  The  Practice. 

Art.  III.   The  Tri dentine  Suspension. 

93.  The  remedium  ex  inforniata  cottscieniia,  as  it  is  called 
in  our  Instruction,  art.  9,  or  the  sententia  ex  inf.  consc.y 
as  usually  termed  by  canonists,  is  that  extrajudicial  pro- 
ceeding by  which  the  Ordinary  may  on  account  of  some 
secret  offence,  of  whose  existence  he  is  personally  con- 
vinced, exclude  a  cleric  from  the  sacred  orders  generally, 
or  forbid  him  from  ascending  to  a  higher  one,  or  suspend  an 
ordained  cleric. 

Previous  to  the  Council  of  Trent  the  bishop  could  not 
refuse  to  confer  Holy  Orders  on  any  person  who  was  not 
convicted  of  a  criminal  offence  by  a  legal  canonical  trial, 
or  at  least  against  whom  such  a  proceeding  had  not  been 
already  begun ;  the  same  was  true  of  the  promotion  to  a 
higher  order,  and  of  suspension  from  the  exercise  of  such 
orders.  Pope  Lucius  III.,  a.  1183,  allowed  regular  prel- 
ates to  refuse  the  higher  orders  to  their  subjects  even 
without  previous  judicial  conviction,  when  they  were  sat- 
isfied in  conscience  that  a  secret  oifence  had  been  com- 
mitted.'    This  papal   ordinance  was   by  the  Council  of 

'  To  avoid  in  English  the  continual  repetition  of  that  unwieldy  phrase 
ex  informata  conscientia,  we  presume,  at  the  risk  of  being  charged  with 
forwardness,  to  suggest  the  term  Tridenline  or,  what  will  do  as  well,  ex- 
trajttiiicial  suspension.  When  in  matter  of  marriage  a  writer  mentions 
the  Tridentine  decree,  every  student  of  Canon  law  knows  exactly  that  it 
is  none  other  than  the  one  quoted  as  Tametsi,  S.  xxiv.  c.  i,  de  Ref. 
viatr.,  because  by  it  a  new  form  of  contracting  marriage  had  been  cre- 
ated. Such  a  new  special  creation  was  made  in  Canon  law  by  the  Coun- 
cil of  Trent  in  the  matter  of  ecclesiastical  suspensions,  by  granting  to  the 
prelates  of  the  secular  clergy  the  power  to  proceed  in  certain  cases  ex- 
trajudicially, or,  as  the  phrase  is,  ex  informata  conscientia.  Hence  if  an 
author,  speaking  of  suspension  or  in  general  of  canonical  criminal  pro- 
ceedings, should  mention  the  Tridentine  suspension,  we  think  he  would 
be  readily  understood  to  refer  to  S.  xiv.  c.  1,  de  Ref.,  quoted  below  in 
the  text. 

'  Esse  potest  quod praelati  eorum  covtmissa  secreta  noverint  ex  quibus  con- 
stat eis  quod salva  conscientia  mqUcant  stiblimari.     c.  5,  X..  I.  H. 


Extrajudicial  A  cts.  157 

Trent,  S.  XIV.  c.  \,  de  Re/.,  extended  to  the  whole  secu- 
lar clergy.  These  are  the  words  of  the  Council:  Quum 
honestius  ac  tutius  sit  subjccto  debitam  praepositis  obedient- 
iam  itnpcndendo  in  inferiori  ministerio  deservire,  quam  cum 
praepositortun  scandalo  graduum  altiorum  appetere  digni- 
tatem, ei,  cui  ascensus  ad  sacros  ordines  a  suo  praelato  ex 
qiiacunque  causa,  etiam  ob  occultum  crimen  qiiomodolibet, 
etiatn  extraj'udicialiter,  fucrit  interdictus,  aut  qui  a  siiis 
ordinibus  sen  gradibus  vel  dignitatibus  cccUsiasticis  fuerit 
suspensus,  nulla  contra  ipsius  praelati  voluntatem  concessa 
liccntia  de  se  promoveri  faciendo,  aut  ad  priores  ordines, 
gradus,  dignitates  sive  honores  restitutio  suffragetur. 

94.  From  the  time  of  the  Council  down  to  our  own, 
canonists  have  disputed '  much  about  the  precise  extent 
and  object  of  the  power  thus  conferred  on  bishops  and 
Ordinaries  in  general."  The  following  positions,  how- 
ever, are  certain.  This  Tridentine  suspension  may  not 
only  prevent  one  from  ascending  to  sacred  orders,  but 
also  from  exercising  those  already  received,  like  any 
other  suspension.*  The  bishop  may  proceed  by  extra- 
judicial suspension   only  in   case  of  a  grievous   offence 

'  Most  of  those  disputed  questions  are  now  cleared  up  by  the  concise 
and  ample  instruction  on  this  subject  addressed  by  the  S.  C.  Prop.  Fide, 
20  Oct.  18S4,  to  the  secular  and  regular  prelates  in  missionary  countries. 
See  Appendix.  In  the  following  notes  we  refer  to  it  by  Instr.  1884. 
We  omit  from  the  author's  text  a  number  of  passages  that  we  deem 
unnecessary.  Those  desiring  a  fuller  treatment  of  the  subject  by 
modern  authors  are  referred  especially  to  Pierantonelli,  tit.  vii.;  Kota. 
p.  11.  sect.  3,  n.  50g  sqq. ;  Bouix,  it.  p.  310  sqq. ;  Stremler,  p.  309  ff. ; 
Smith,  n.  1279  flf.  Cfr  also  the  famous  Causa  Lucionensis  given  in 
full  by  the  Ada  S.  S.,  Xiv.  p.  299,  sqq.  For  a  short  and  clear  r^sum/ 
of  the  present  teaching  of  canonists  on  the  Tridentine  suspension  con- 
sult Siinti,  1.  V.  tit  I.  n.  ll  sqq.  For  the  rationale  of  this  Tridentine 
law  consult  Cavagnis,  vol.  ii.  p    153.  and  especially  Paliotini's  work. 

*  S.  C.  C.  14  Nov.  1654.  AJP.,  XIV.  974.  Whether  this  include  also 
vicars-general  is  disputed. 

•  Instr.  18S4,  an.  I. 


158  The  Practice. 

deserving  severe  chastisement.*  If  there  were  only  a 
h'ghter  offence  {causa  levis),  Rome  in  case  of  recourse 
will  assuredly  annul  the  sentence."  The  most  import- 
ant condition,  however,  is  that  the  crime  be  a  secret 
or  occult  one.'  The  bishop  cannot  punish  a  public  of- 
fence by  an  extrajudicial  suspension."  It  would  be  null 
and  void.  The  particle  etiam  in  occultis,  in  the  Tridentine 
decree  quoted  above,  has  not  an  extensive  but  a  restric- 
tive meaning,  something  like  scilicet,  namely  ;^  yet  that 
this  suspension  may  be  inflicted  on  some  one  for  an  occult 
crime,  although  he  be  at  the  same  time  guilty  of  public 
delicts,  was  declared  by  the  S.C.C.  on  the  27th  Feb.  1875." 
95.  Here  the  important  question  arises,  when  is  an 
offence  occult  in  the  sense  contemplated  by  that  Triden- 
tine decree?  Canonists  mostly  agree  on  this  answer :  i. 
When  it  is  such  in  the  ordinary  and  common  acceptation 
of  the  term  ;'  2.  When  although  not  being  in  itself  simply 
secret  or  occult,  yet  for  certain  reasons  it  cannot  be  estab- 
lished by  regular  trial.'  Such  reasons  may  be,  e.g.,  the  re- 
fusal of  witnesses  to  testify,  or  State  interference,  or  other 

>  Ibid.  art.  6. 

»  S.  C.  C.  1728.     AJP.,  XIX.  T119. 

*  Iitstr.  1884,  art.  6;  Rota.  n.  522  sqq. ;  Lucidi,  1.  C.  3,  n.  272  ff. 

*  S.  C.  C,  20  Dec.  1873;  Acta  S.  S.,  vii.  575. 
»  AJP.,  XIX.  1228. 

*  /fcta  S.S.,  VIII.  553.     This  is  confirmed  by  /;istr.  1884,  art.  8. 

''  The  Instr.  1884,  art.  7,  calls  a  delict  occult  when  it  is  not  yet  an  ob- 
ject either  of  a  judicial  trial  or  of  public  rumor,  and  when  it  is  known  to 
such  few  and  discreet  persons  that  it  cannot  be  called  public.  Cfr.  the 
Causa  Ugentina,  9  Aug.  1884,  ap.  Acta  S.  S.,  Xvn.  368  sqq. 

*  This,  as  Pierant.,  I.e.  n.  21,  rightly  says,  includes  our  summary  trial. 
By  this  new  form  of  trial  delicts  can  be  much  more  easily  proved  than 
by  the  former  plenary  and  ordinary  judicial  proceeding  Hence  there 
will  undoubtedly  be  rather  few  cases  where  a  canonical  offence,  although 
not  simply  occult,  could  not  be  proved  by  a  summary  trial.  This  may 
explain  why  the  Instr.  1884  does  not  mention  that  second  signification 
of  occult,  although  it  is  otherwise  admitted  by  all  to  be  within  the  mean- 
ing of  the  Tridentine  ordinance, 


Extrajudicial  Acts.  1 59 

impossibility  of  obtaining  judicial  evidence ;  and  again 
when  a  trial,  on  account  of  great  scandal,  would  do  more 
harm  than  good  among  the  faithful.'  This  condition, 
therefore,  implies  either  that  there  is  actually  evidence 
enough  to  convict  the  guilty  person,  but  it  cannot  be 
got  in  the  regular  judicial  way,  and  hence  no  judicial 
conviction  can  be  arrived  at ;  or  that  higher  considera- 
tions forbid  regular  proceedings  which  are  in  their  very 
nature  public.  But  how  may  the  bishop  be  certain, 
how  can  he  prove,  that  a  regular  trial  is  impossible  al- 
though he  has  suflficient  evidence  of  the  crime?  There 
is  no  difficulty  in  case  of  physical  impossibility;  as  to 
the  moral  impossibility,  because  of  the  evil  arising  out 
of  a  public  or  formal  trial,  the  bishop  must  carefully 
consider  the  whole  case  to  satisfy  his  own  conscience, 
and  see  if  he  be  able  to  justify  his  action  if  called  upon 
by  Rome.  As  a  rule,  when  delinquent  does  nothing 
whatever  to  create  scandal,  or  when  presumably  he  will 
do  nothing  of  the  kind,  if  regularly  tried  ;  or  especially 
if  he  have  privately  requested  of  the  bishop  such  a  trial, 
the  bishop  ought  to  begin  the  trial  and  see  how  far  he 
may  succeed.  When  bishops  proceeded  extrajudicially 
in  such  cases,  Rome  had  often  to  remedy  it.'  It  must 
also  be  observed  that  where  on  account  of  extraordi- 
nary circumstances  even  a  notorious  delict  cannot  be 
judicially  established,  still  the  Tridentine  suspension  may 
not  be  inflicted.  The  bishop  will  have  to  institute  the 
so-called  trial  de  notorio. 

May  an  offence  still  be  considered  occult  in  the  sense 
pointed  out,  when  judicial  proceeding  has  already  been 
instituted  against  delinquent?  We  must  distinguish: 
while  the  process  is  going  on,  and  after  a  conviction  has 
been  obtained,  the  offence  must  be  considered  public. 
Not  so,  however,  when  the  result  is  acquittal.  Taking  for 
'  AJP..  XIX.  1229.  *  S.  C.  C,  Mch.  1858.    AJP..  XX.  166. 


i6o  The  Practice. 

granted  that  the  person  acquitted  is  really  guilty,  and 
that  he  was  acquitted  only  because  judicial  proof  could 
not  be  obtained,  we  must  admit  that  by  the  acquittal  the 
offence  has  again  become  secret,  the  publicity  of  the  of- 
fence has  been  removed,  as  the  judge  has  publicly  de- 
clared the  accused  not  guilty  of  the  offence  laid  to  his 
charge.  In  this  case  the  bishop  may  still  proceed  extra- 
judicially against  delinquent  if  he  has  positive  proof  of 
his  guilt.*  The  Tridentine  suspension  cannot  be  im- 
posed for  a  crime  after  a  judicial  conviction  of  the  same, 
but  the  punishment  publicly  decreed  by  the  sentence  is 
to  be  inflicted. 

Roman  declarations,  the  teaching  of  canonists,  and  the 
very  nature  of  the  Tridentine  suspension  leave  no  doubt 
that  the  bishop  must  be  fully  convinced  of  the  guilt  of 
the  person  against  whom  he  intends  to  proceed,  before 
he  may  use  this  remedy.  He  must  not  act  upon  impulse 
and  feeling  or  a  mere  suspicion  however  strong,  but  the 
evidence  of  the  guilt  should  be  such  as  may  also  convince 
other  thinking  and  sensible  men  and  especially,  in  case 
of  a  recourse,  the  eminent  members  of  the  S.  Congrega- 
tion.* A  mere  assertion  by  the  bishop  is  not  enough.  If 
complainant  brings  some  evidence  to  the  contrary,  the 
Congregation  orders  the  suspension  to  be  removed,  at 
least  with  the  clause  cum  reicidentia^  or,  if  the  reason 
clearly  appear  unjust,  declares  it  void  * 

96,  The  effect  of  the  Tridentine  suspension,  as  said 
before,  is  to  prevent  a  person  from  receiving  a  sacred 
order,  or,  if  he  be  ordained  already,  from  exercising  it. 
The  suspension    may   therefore    be  ab  ordine  ct  officio. 

'  Cfr.  Pierantanelli.  tit.  c,  n.  13. 

'  For.  in  this  case  the  S.  C.  will  require  equally  strong  reasons  to  up- 
hold the  extrajudicial  suspension  that  it  would  in  case  of  appeal  from  a 
strictly  judicial  suspension.     Acta  S.  5.,  V    22.     Cfr.  Instr.  1884,  art  10. 

»S.  C  C,  Dec.  1721.     AJP.,  XIX.  H17,  n. 

*  Acta  S.S.,\.c, 


Extrajudicial  A  cts.  1 6 1 

But  the  Council  did  not  in  this  decree  explicitly  grant 
the  power  to  suspend  a  beneficio,  nor  is  an  extensive  and 
liberal  interpretation  admissible,  as  it  concerns  a  penal 
law.'  The  suspension  does,  however,  to  a  certain  extent 
affect  the  beneficium  of  the  suspended  cleric,  as  he  must 
pay  from  his  income  the  honorary  of  a  substitute,  if  nec- 
essary.' 

How  long  may  this  suspension  last?  We  think  the 
bishop  m\g\\i  ex  informata  conscientia  exclude  a  candidate 
forever  from  receiving  higher  orders,  especially  as  the 
latter  may  himself  come  to  the  conclusion  that  he  has  no 
vocation.*  The  bishop,  however,  should  not  thus  suspend 
in pcrpctuum  from  order  or  office  ;*  nor,  as  a  rule,  for  an  un- 
limited, indefinite  time,  to  be  revoked  at  pleasure.'  If 
the  bishop  has  nevertheless  for  grievous  cause  suspended 
ad  beneplacitum,  the  suspension  is  temporary  and  will 
lapse  of  itself  with  his  death,  or,  what  in  regard  to  his 
diocesan  jurisdiction  amounts  to  the  same,  with  his  trans- 
lation to  another  see,  etc.*  Canonists  contend  that  the 
Tridentine  suspension  should  not  continue  longer  than 
six  months.^  If  it  be  longer  than  a  year,  the  S.  Congre- 
gation will,  upon  petition  of  the  suspended  cleric,  readily 
remove  it.' 

With  regard  to  a  recourse  to  Rome  against  the  Triden- 
tine suspension  suffice  it  here  to  say  that  it  hzs  per  se 

'  Jiota,  n.  520, 

*  Thus  the  Instr.  1884,  art.  4.  It  would  appear  from  this  that  Sanli's 
opinion,  1.  c,  n.  22,  is  untenable. 

*  That  is  not  the  question.  A  clerical  candidate  may  certainly  be  put  oflf 
in  indefinitum  from  receiving  higher  orders  for  any  good  cause  •whatever. 
But  the  author  seems  to  forget  here  that  the  Tridentine  suspension  or  in 
the  present  case  prohibition,  is  a  chastisement  for  crime  only.  For  this 
reason  we  think  that  in  regard  to  the  duration  of  the  Tridentine  suspen- 
sion it  makes  no  difiference  whether  we  refer  to  its  first  or  second  effect. 

*  Instr.  18S4.  art.  5.  *  Rota.  n.  519;  Lucidly  1.  c,  n.  264  ff. 

*  Instr.  1884,  1.  c.  ^  AJP..  xiv.  975. 

*  S.  C.  C,  Dec.  1733.     AJP.,  XIX.  II2I. 


1 62  The  Practice. 

neither  suspensive  nor  devolutive  effect,  and  the  suspen- 
sion remains  in  force  till  removed  by  the  S.  Congregation. 
Such  recourse  in  case  of  a  prohibition  from  receiving 
sacred  orders  has  seldom  been  successful.'  Candi- 
dates thus  put  off  have  sometimes  petitioned  Rome  to 
command  the  bishop  to  proceed  against  them  judicially 
in  order  to  show  cause  why  they  should  not  be  ordained. 
The  S.  Congregation,  however,  will  not  grant  such  re- 
quests, and  rightly  so.  One  may  be  a  good  and  honest 
person  without  being  called  to  the  priesthood  or  sacred 
orders.  Hence  the  S.  C.  has  generally  advised  such  peti- 
tioners so  to  conduct  themselves  that  if  they  really  have 
a  clerical  vocation,  the  bishop  may  of  himself  come  to 
such  a  conviction  ;  that,  moreover,  they  should  address 
renewed  petitions  to  the  bishop  himself.* 

97.  The  Tridentine  suspension  being  an  extrajudicial 
act,  the  bishop  is  not  bound  to  observe  any  judicial  for- 
malities or  to  premise  canonical  admonitions.'  Still,  as  the 
bishop  should  in  every  judicial  procedure  be  guided  by 
the  consideration  se  pastores,  non  percussores  esse  (C.  Trid.) 
and  never  forget  the  precepts  of  Christian  charity  towards 
their  erring  brother,  so  likewise,  and  for  greater  reasons, 
in  the  present  case.  The  delict  to  be  punished  is  an  oc- 
cult, a  secret  one.  The  bishop  is  therefore  not  permitted 
to  make  known  to  others  the  fault  any  more  than  the 
punishment.  As  long  as  the  delict  remains  unknown,  the 
good  name  of  the  delinquent  is  preserved  ;  he  possesses 
still  the  respect  of  the  community,  and  enjoys  that  ex- 
ternal honor  which  is  such  a  great  good  particularly  for 
an  ecclesiastic  who  has  care  of  souls,  and  who  without  a 
stainless  reputation  cannot  do  efficient  work.  It  might 
seem,  though,  that  by  the  suspension  itself  this  external 
honor  of   the  ecclesiastic  were  already  in  some  degree 

'  AJP.,  XI.  1105.      *  S.  C.  C,  7  Sept.  1759.  AJP  ,  XX.  6g. 
*  Instr.   1884,  art.  2. 


Extrajudicial  Acts.  163 

jeopardized  ;  yet  the  effects  of  this  suspension  are  such  as 
an  ecclesiastic  may  under  circumstances  voluntarily  im- 
pose upon  himself.  He  may  for  reasons  of  piety,  con- 
science or  scrupulosity  retire  for  a  while  into  solitude  to 
collect  himself  and  provide  more  surely  for  the  salvation 
of  his  soul ;  or  he  may  for  temporal  causes,  which  are  not 
always  given  out  in  public,  refrain  from  some  public  func- 
tions, or  go  abroad,  etc.  Again,  a  person  about  to  receive 
orders  may  from  motives  of  conscience  and  of  his  own 
accord  put  off  being  ordained  or  retire  altogether. 
Hence  the  consequences  of  a  Tridentine  suspension  need 
not  necessarily  appear  to  the  public  as  a  punishment. 

On  account  of  the  very  strict  secrecy  and  caution  to 
which  he  is  bound,  the  bishop  will  generally  have  to  act 
personally  throughout  the  whole  case.  How  he  receives 
the  first  intimation  that  an  offence  subject  to  this  pun- 
ishment has  been  committed,  is  a  question  of  fact.  Cut 
to  obtain  a  full  conviction  and  certainty  thereof,  he  has 
often  to  gather  all  kinds  of  proof  or  evidence.  Nothing 
prevents  him  from  examining  the  delinquent  himself. 
Often  he  must  examine  witnesses.  Here  he  must  proceed 
with  the  greatest  caution.  It  will  be  advisable  to  make 
witnesses  promise  under  oath  not  to  reveal  either  their 
depositions  or  the  fact  of  their  examination.  A  clerk  or 
secretary  should  not  be  present. 

When  the  bishop  is  convinced  of  the  offence  charged, 
and  if  after  a  careful  consideration  of  all  the  circum- 
stances of  the  case  he  is  of  the  firm  opinion  that  the 
offence  is  a  secret  one  in  the  sense  above  explained,  he 
may  then  pronounce  the  sentence  ex  informata  conscientia, 
which  may  possibly,  coming  without  any  previous  admo 
nition  or  warning,'  strike  the  offender  \\\;.e  futgur  de  coelo 
sereno. 

'  Although  the  bishop  is  not  bound  by  law  to  premise  a  canonical  ad- 
monition, yet  prudence  as  well  as  charily  seem  to  demand  it,  quotiet fieri 


1 64  The  Practice. 

The  sentence  of  the  suspension  (prohibition)  must 
be  in  writing;  an  oral  communication  alone  will  not 
suffice.'  The  bishop  must  personally  deliver  it  to  the 
delinquent ;  nor  may  he  employ  the  post-office  to  deliver 
the  writing,  although  the  messenger  may  not  have  the 
least  suspicion  of  the  contents.  For,  this  mode  affords  no 
absolute  certainty  of  secrecy.  Nothing,  therefore,  is  left 
to  the  bishop  but  to  cite  the  person  to  appear  personally, 
and  then  intimate  the  sentence  and  deliver  the  writing.' 
It  is  strictly  forbidden  to  enter  it  in  any  manner  on  the 
records  of  the  episcopal  chancery.'  The  bishop  must 
make  a  private  note  thereof,  to  serve  as  evidence  before 
the  S.  Congregatio  Concilii,  should  the  delinquent  ap- 
peal  by  recourse.  If  any  such  notes  be  found  after 
the  bishop's  death,  they  are  to  be  inclosed  in  an  envel- 
ope addressed  to  the  bishop's  successor,  and  kept  in  the 
chancery.  The  successor,  having  ascertained  their  na- 
ture, must  destroy  the  notes  ;  but  in  no  case  is  he  al- 
lowed to  make  use  of  them.*  The  vicar-general  is  ex- 
pressly forbidden  to  take  possession  of  these  notes,  as 
may  even  be  inferred  from  the  fact  that  with  the  bish- 
op's death  he  ceases  to  be  vicar-general.  The  bishop 
might  do  well  to  use  fictitious  names  in  these  notes, 
especially  as  the  suspension  terminates  upon  his  death. 

possit  nee  sit  perictihun  in  viora,  Pieranton.,  h.  t.,  n.  4.  Nothing  more 
than  this  is  proved  by  the  verbose  rather  than  weighty  discussion  of  Kota, 
529  sqq.,  against  Bouix.  The  Instr.  1884,  art.  9,  only  directs  the  bishop 
to  join  paternal  admonitions  xvith  the  suspension,  so  that  it  may  not  re- 
main a  mere  repressive  remedy,  but  become  at  the  same  time  a  means  of 
correction  and  amendment. 

•  S.  C.  C,  5  Sept.  1883.     AJP.,  XX   84. 

'  The  author  asserts  that  the  bishop  may  not  employ  another  person 
to  communicate  the  sentence  to  the  delinquent.  This  opinion  can  no 
longer  be  maintained  as  the  Instr.  1884,  art.  3,  explicitly  states  the 
contrary. 

»  S.  C.  C,  II  Aug.  1758.     AJP.,  XX.  68. 

*  AJP.,  XIX.  1129. 


The  Judicial  Trial.  165 

The  written  sentence  to  be  communicated  to  delin- 
quent must  contain  tlie  name  of  the  person  suspended  ; 
it  must  clearly  state  the  nature,  extent  and  duration  of 
the  suspension,  and  that  it  has  been  decreed  against  him 
in  accordance  with  c.  i,  S.  XIV.,  C.  Trid.'  Finally,  it  must 
bear  the  subscription  and  signature  of  the  bishop.  The 
document  need  not  give  the  reasons  for  the  suspension," 
much  less  need  the  bishop  make  known  the  evidence  and 
testimony  of  the  witnesses. 


CHAPTER    II. 

THE  JUDICIAL  TRIAL. 
Art.  I.   TJie  Auditor s  Inquest. 

99.  By  judicial  trial  we  mean  here  those  criminal  pro- 
ceedings where  after  judicial  conviction  proper  eccle- 
siastical punishments,  especially  greater  and  severer  ones, 
will  be  inflicted.  We  certainly  do  not  mean  to  gainsay 
the  right  of  the  bishop  to  enforce  the  observance  of  di- 
ocesan statutes  or  other  ordinances  by  lighter  punish- 
ments, especially  pecuniary  penalties,  to  be  executed  in 
purely  administrative  ways.  Even  in  regard  to  the  ad- 
ministration of  church  property  he  may  find  it  necessary 
to  use  similar  coercive  means  to  keep  or  restore  order  in 
these  affairs.  Yet  such  administrative  penal  policy  will 
be  of  no  consequence  unless  the  delinquent  voluntarily 
submit  himself.  If  he  do  not,  the  bishop  must  after  all 
have  recourse  to  the  judicial  criminal  procedure. 

The  remote  condition  necessary  before  criminal  pro- 
ceedings can  be  instituted,  is  the  violation  of  some  penal 
law  whether  general  or  particular,  or  of  a  canonical  in- 

'  Instr.  1884,  art.  3^  45.  ^  Ibid.  art.  g. 


1 66  The  Practice. 

junction.  The  common  principle  Nulla  poena  sine  lege  is 
also  embodied  in  the  Instr.,  art  lO.  The  next  condition 
is  that  the  authoiities  be  informed  not  only  of  the  offence 
or- crime  committed,  but  also  of  its  author.  Without  any 
knowledge  as  to  the  probable  offender,  no  regular  trial  can 
be  instituted.  The  criminal  proceedings  will  begin  upon 
motion  of  the  fiscal  procurator.'  By  what  means  he  ob- 
tains the  required  previous  information  is  always  a  mere 
question  of  fact.  He  may  obtain  it  directly  or  indirectly 
through  the  bishop  or  other  ecclesiastical  ofificials,  by  way  J 
either  of  a  petition  or  a  complaint,  by  public  or  private  ^ 
notices,  by  rumor,  or  even  in  the  course  of  some  other 
judicial  or  extrajudicial  investigation.  All  this  is  implied 
in  art.  1 1  of  the  Instr.  We  are  here  no  further  concerned 
with  these  questions  of  mere  fact.  But  we  wish  to  remark 
that  anonymous  communications  are  to  be  received  with 
the  very  greatest  caution.* 

The  honor  of  the  Church  and  of  the  clerical  state,  the 
good  character  of  the  priesthood  so  indispensable  to  any 
beneficial  labor  for  the  salvation  of  souls,  the  full  confi- 
dence in  the  priest  so  necessary  to  those  confided  to  his 
charge,  are  high  considerations  why  the  fiscal  procurator 
must  in  every  official  act  be  exceedingly  discreet,  careful 
and  circumspect.  How  often  does  it  happen,  thus  wrote 
the  S.  Congregation  to  the  Bishop  of  Elba,  that  an  eccle- 
siastic "  est  poursuivi  par  un  parti  liostile  qui  I'accuse 
pour  des  fins  particuli^res."  ' 

lOO.  When  the  fiscal  procurator  has  a  well-founded 
suspicion  or  is  otherwise  sufficiently  informed  that  a 
crime  has  been  committed,  he  must  first  inquire  extra- 
judicially* into  the  actual  fact,  and  thereby  ascertain  not 

'  Pierantonelli,  tit.  5,  n.  2.  3;  Rota,  648  sqq.;  Acta  S.  S.,  xv.  384  sq. 
*  Pierantonelli,  tit.  3.  n.  11.     See  also  supra,  n.  36. 
«  19  Apr.  1858.     AJP.,  XX.  166. 
■*  AJP.,  XIV.  971. 


The  Judicial  Trial.  167 

only  those  circumstances  which  tend  to  criminate  the  ac- 
cused, but  also  those  that  tend  to  exculpate  him.'  For 
this  purpose  he  may  interrogate  witnesses  and  experts, 
and  ask  the  ecclesiastical  authorities  for  help  and  assist- 
ance. This  extrajudicial  and  preliminary  inquest,  which, 
in  order  to  avoid  scandal,  must  be  made  in  a  discreet  and 
forbearing  manner,  is  absolutely  necessary,  except  in  case 
of  notoriety,  before  a  judicial  criminal  proceeding  can  be 
instituted.'  This  is  expressly  required  by  the  Iiistr.,  art. 
1 5.'  A  hasty,  inconsiderate  beginning  of  criminal  proceed- 
ing.s,  without  a  sound  and  legal  basis,  justifies  a  complaint 
to  the  higher  authorities.*  The  result  of  this  preliminary 
investigation  will  be  either  to  begin  a  public  action  or  to 
proceed  extrajudicially  or  to  leave  things  in  statu  quo, 
according  as  the  bishop  has  succeeded  in  collecting  suffi- 
cient evidence  to  warrant  further  proceedings  or  not.  In 
matters  of  correction  proper  \n  y:\\\c\\  poenae  medicinales 
are  employed,  judicial  action  is  barred  by  limitation  in 
five  years.'  The  fiscal  procurator  must  moreover  refrain 
from  bringing  suit  when  the  bishop  forbids  it,  upon  whose 
commands  of  course  he  entirely  depends.  What  may 
induce  the  bishop  to  discard  all  criminal  proceeding  is  in 
most  cases  a  question  of  fact.*  A  peculiar  case  is  men- 
tioned by  the  Instr.,  art.  43.' 

loi*.  If  sufficient  ground  has  been  discovered  upon 
which  to  institute  a  criminal  trial,  the  bishop  will  order 
his  public   prosecutor  to    formulate    and    bring   in    the 

'  See  our  remarks  on  the  subject  supra,  n.  35. 

*  S.  C.  Epp.,  23  July  1831.     AJP.,  x.\.  460. 

*  Cfr.  Acta    S.   S.,  xv.  p.  3S7.     On  this  previous  inquest  see  our   re- 
marks supra,  n.  S7. 

*  S,  C.  Epp.,  23  July  1831.     AJP.,  XX.  460. 

»S.  C.  Epp.,  7  May  1830.    AJP.,  xx.  718.     20  June  1S31.     AJP.,  xii 
1 1 32. 

*  See  Jtt/r<7,  n.  34;   Stremler,  p.  154. 

'  Cfr.  Acta  S.  S.,  xv.  p.  397;  /^ota,  n.  857. 


1 68  The  Practice, 

charge.'  It  should  be  a  dear  and  definite  statement  of 
the  case,  giving  the  name  of  the  delinquent,  the  nature 
and  extent  of  the  offence  or  delict,  and  the  laws  that  were 
thus  violated.  It  might  also  contain  a  summing  up  of 
the  evidence  gathered  in  the  .  previous  inquest.  A  copy 
of  such  a  specified  and  at  the  same  time  comprehensive 
charge  ought  to  be  given  to  the  auditor,  to  whom  it  would 
be  a  most  serviceable  guide  during  the  following  judicial 
inquiry.^  Having  received  the  charge,  the  bishop  will  ap- 
point or  commission  an  auditor'  to  conduct  the  informa- 
tive proceeding,  by  which  all  the  evidence  bearing  on  the 
case  for  the  prosecution  as  well  as  the  defence  is  to  be 
gathered.*  The  Instr.  clearly  indicates  two  phases  of  this 
inquest  which  have  been  called  respectively  offenswe  and 
defensive  proceedings.  The  first  (arts.  17-21)  consists  main- 
ly in  gathering,  especially  by  witnesses,  all  the  evidence 
that  may  prove  or  establish  the  charge  against  the  ac- 
cused {ad  C7tlpant  accusati  probandam),  although,  as  we 
remarked  elsewhere  (n.  28),  the  auditor  must  be  careful 
not  to  conduct  the  inquest  on  the  supposition  that  the 
accused  is  really  guilty.  Even  now  he  must  try  to  find 
evidence,  if  there  be  any,  that  may  exculpate  the  delin- 
quent. After  the  auditor  has,  under  the  prosecutor's 
guidance,  obtained  all  the  evidence  available  for  the 
prosecution,  he  will  begin  the  defensive  proceeding  (arts. 
21-28),  which  opens  with  the  citation  of  the  accused." 
The  legal  requisites  of  the  citation,  examination,  and 
eventual  confession  of  the  accused  are  explained  above.* 
The  accused  may  be  examined  at  his  own  residence  if 

'  C.  PI.  B.  III.,  n.  311. 

*  This  is  quite  in  keeping  with  the  Instr.  1878,  arts,  j,  2,  6. 

*  See  Article  II..  p.  52. 

*  On  judicial  eridence  see  Chapter  II.,  p.  92. 

*  Droste  holds  that  the  defensive  proceeding  begins  only  with  the  final 
pleading. 

*  Article  II..  p.  96. 


The  Judicial  Trial,  169 

circumstances  allow  it.  In  this  case  the  citation  must  con- 
tain the  command  to  remain  at  home  at  an  appointed 
time,  when  the  auditor  and  clerk  will  call  upon  him.  The 
accused  must  be  examined  in  person  ;  he  cannot  be  repre- 
sented by  attorney.  The  examination  will  be  conducted 
by  the  auditor  exclusively,  although  the  fiscal  procurator 
may  be  present.'  Defendant  is,  however,  as  yet  denied 
counsel  or  advocate.'  The  accused  may  answer  the  ques- 
tions put  to  him  or  may  refuse  to  do  it,  which,  however, 
will  always  create  suspicion  ;  he  will  not  be  forced  to  an- 
swer. Yet  courtesy  would  require  him  at  least  to  answer 
the  general  interrogatories.  He  is  allowed  to  make  any 
relevant  allegations  and  averments  for  his  defence  and  to 
offer  any  verifications  he  can  possibly  give,  etc.  What- 
ever evidence  for  the  defence  the  auditor  may  thus  be 
able  to  obtain  must  be  taken,  as  the  Instr.,  art.  25,  de- 
mands. Against  the  evidence  for  the  prosecution  de- 
fendant may  try  to  prove  it  to  be  conflicting,  variant, 
rather  slight  and  inconclusive.  In  the  later  proceeding, 
after  the  publication  of  the  testimony,  the  defence  may 
challenge  the  opposing  witnesses,  their  credibility  and 
competency ;  or  if  a  denial  of  the  charge  is  impossible,  it 
may  put  in  a  plea  in  avoidance  (showing  that  the  action 
charged  is  not  criminal  nor  subject  to  disciplinary  correc- 
tion), or  a  plea  of  justification  (proving  that  defendant  had 
a  right  to  act  as  charged),  or  a  plea  in  excuse  {9,\\o\\'mg  cir- 
cumstances to  extenuate  and  diminish  the  grievousness 
of  the  charge).*  All  the  allegations,  exceptions  and  pleas 
of  the  accused  are  entered  on  the  minutes  by  the  clerk, 
whom  the  auditor  ought  to  direct  and  help  in  the  matter. 
The  minutes  are  read  to  the  accused  or  handed  to  him 
for  inspection.  He  is  then  asked  whether  he  wishes  any- 
thing to  be  changed  or  added,  and  any  such  request  of 
his  must  as  far  as  possible  be  complied  with.  Finally, 
■  AJP.,  XIV.  927.  *  AJP.,  XX.  734.  »  Rota,  n.  728. 


1 70  The  Practice. 

the  accused,  if  willing^,  should  sign  the  minutes  ;  so  also 
must  the  auditor  and  the  clerk.  If  defendant  demand  it, 
a  probatory  term  must  be  given,  when  he  may  hand  in  his 
defence  in  writing.' 

102.  While  the  auditor  was  engaged  in  taking  evidence 
for  the  prosecution  and  the  defence,  the  fiscal  procurator 
may  have  found  additional  evidence  on  his  side.  If  so, 
he  may  offer  it  after  the  hearing  of  defendant,  and  the 
auditor  may  thus  have  to  examine  new  witnesses,  or  the 
former  on  new  but  relevant  matter,  or  to  institute  other 
judicial  proceedings.  The  results  of  this  new  inquiry 
must  be  communicated  to  defendant  the  same  as  before, 
who  thereupon  has  the  right  to  answer  and  defend  him- 
self anew,  because  he  or  his  defender  is  always  entitled  to 
close  the  case.  Several  probatory  terms  may  thus  become 
necessary  before  all  the  evidence  for  and  against  the  ac- 
cused is  collected  and  the  inquest  may  be  closed. 

When  neither  party  has  any  more  evidence  or  motions 
to  offer,  and  the  auditor  himself  considers  the  investiga- 
tion complete,  he  will  declare  the  inquest  closed,''  and 
make  out  a  written  resume  of  the  results  of  the  investiga- 
tion, according  to  art.  29.^  This  abstract  together  with 
the  whole  proces-verbal  (the  acts)  of  the  inquest  the  audi- 

'  Instr.,  art.  28. 

*  "  Conclusio  in  causa  est  actus  judicialis  quo  utrique  parti  ulterior 
probationum  seu  exceptionum  productio  interdicitur."  {Sanguineti,  n. 
618) 

'  The  abstract  is  to  give  the  main  arguments  {summarium praecipuorum 
argiimentorum — ristretto  delle  esseiiziali  risultanze)  pro  and  contra  as  derived 
from  the  evidence  obtained  at  the  inquest.  We  would  advise  the  auditor 
for  the  sake  of  ready  reference  to  mark  the  folios  or  sheets  containing 
the  acts  or  minutes  not  only  by  the  ordinary  numbers  for  the  paging,  but 
also  with  letters  of  different  type  or  in  different  ink  (A,  b.  y,  4),  accord- 
ing to  the  different  kinds  and  parts  of  the  evidence.  By  such  a  device 
he  can  easily  indicate  where  the  evidence  from  which  he  draws  the  con- 
clusions is  found  in  the  acts  or  minutes.  This  r6sum6  or  abstract  by  the 
auditor  may  be  compared  to  the  judge's  "  charge  "  (summing  up)  to  the 
jury  in  Common  law. 


The  Judicial  Trial.  171 

tor  transmits  to  the  fiscal  procurator,  notifying  him  at  the 
same  time  that  he  has  finished  his  work  and  closed  the 
inquest.'  The  fiscal  will  peruse  the  documents  in  order 
to  draw  up  his  last  charge  and  motions  {rcquisitoria 
fiscalis)  for  the  final  pleading,  supported  by  the  evidence 
obtained  in  the  trial.  When  he  has  finished  he  will  de- 
liver the  documents  (the  auditor's  abstract  and  the  acts) 
together  with  any  special  motions  of  his,  which,  however, 
he  cannot  afterwards  change,  to  the  bishop  or  the  judge 
appointed,  who,  after  examining  them,  will  fix  a  term  for 
the  final  pleading,  to  which  he  must  accordingly  summon 
defendant  as  well  as  the  prosecutor.     Instr.,  art.  35. 

The  time  intervening  between  the  close  of  the  inquest 
and  the  final  proceeding  must,  however,  be  sufficient  to 
allow  the  accused  and  his  counsel  to  prepare  themselves 
for  the  defence ;  a  period  of  only  two  days  would  cause 
the  proceeding  to  be  annulled.' 

'  There  is  some  difference  between  the  V Ordinario  and  the  Cum  Mag- 
nopere  with  regard  to  the  final  proceeding.  It  mainly  consists,  as  we  re- 
marked supra,  p.  142,  note  4,  in  the  fact  that  the  American  Instruction 
positively  shuts  out  any  parol  pleading,  so  that  the  accusation  as  well  as 
the  defence  must  be  made  and  handed  to  the  judge  in  writing.  By  an- 
alogy, though,  with  the /«j/r,  1878  for  the  Committee  of  Investigation, 
arts.  6,  7,  which  the  Cum  Magnopere  follows  in  many  points,  we  believe 
that  the  court  when  sitting  to  give  sentence  might  first  allow  the  fiscal 
procurator  and  the  counsel  for  the  accused  to  read  respectively  ihe  charge 
and  the  defence  and  offer  oral  explanations.  The  regular  pleading, 
however,  being  in  writing,  the  Cum  Maguop.  orders,  in  art.  33,  that  the 
prosecutor's  final  charge  (conclusiones)  shall  be  communicated  to  de- 
fendant's advocate,  thus  to  enable  him  to  make  the  defence  as  full 
and  thorough  as  he  possibly  can.  The  written  defence  together  with  the 
charge  is  then  returned  to  the  bishop  (or  the  vicar-general,  if  he  was  ap- 
pointed to  try  the  case),  who  in  private  and  at  leisure  will  carefully  study 
and  closely  examine  both  until  he  is  able  to  conscientiously  form  a 
judgment  and  give  sentence /«x/<j  allegata  et probata.  He  will  then  fix  a 
day  to  pronounce  sentence  m  court,  and  summon  the  parties.  On  the 
day  appointed,  when  all  are  present  in  court,  sentence  will  be  given 
without  any  new  pleadings  or  transactions  (art.  34). 

'20  Aug.  1681.     AJP.,  xiil.  51. 


172  The  Practice. 

Defendant  and  his  counsel  may  cither  peruse  the  ab- 
stract, the  proces-verbal  and  the  fiscal's  observations 
(art.  32)  in  the  original  at  the  episcopal  chancery ;  or  they 
may  demand,  at  their  own  expense,  a  copy  thereof  certi- 
fied by  the  chancellor.  Counsel  may  first  have  to  take 
the  oath  of  secrecy,  if  the  bishop  so  decide.  But  it  would 
not  be  enough  to  give  them  a  mere  extract  from  the 
acts.'  Such  an  inspection  of  the  acts,  however,  cannot 
be  allowed  to  defendant  or  his  counsel  before  the  inquest 
is  closed,  as  it  is  virtually  the  so-called  publication  of  the 
process.  But  in  no  case  may  the  accused  or  counsel 
take  the  original  acts  home  with  them,  or  away  from  the 
chancery.  Even  when  the  documents  may  be  perused  at 
the  chancellor's  office,  such  measures  and  precautions 
ought  to  be  taken  by  him  that  the  acts  cannot  be  ab- 
stracted or  otherwise  tampered  with.* 

Counsel  may  hand  in  the  defence  either  in  writing  or 
print,  even  before  the  day  set  for  the  final  pleading 
(art.  32).' 

Art.  II.   The  Final  Pleading  and  Sentence. 

103.  The  final  pleading  of  the  prosecutor  and  counsel 
for  defendant  must  take  place  in  presence  of  the  vicar- 
general  and  the  chancellor  {L'Ordinario,  art.  35).  There 
is,  however,  nothing  in  the  way  to  prevent  several  judges 
from  sitting  for  the  final  hearing  in  a  criminal  case; 
rather  it  is  to  be  recommended  in  order  to  make  more 
certain  that  justice  will  be  done."  The  citation  of  the 
accused  to  this  final  proceeding  (which  is  just  as  little 

'  15  Mch.  1817.     AJP  ,  XIII.  51. 

*  Cum  Magnop.,  art.  32,  "  debitis  sub  cautelis."     Cfr.  AJP.,  xx.  451. 

'  According  to  the  Cum  Magnop.  counsel  must  do  it  before  the  plead- 
ing. But  as  that  is  all  in  writing,  we  suppose  the  judge  will  fix  a  day 
when  the  defence  must  be  handed  in  at  the  latest. 

*  See  our  remarks  supra,  p.  52,  note  i. 


7  he  Judicial  Trial.  173 

public  in  the  sense  that  the  public  at  large  may  be  ad- 
mitted as  the  inquest  itself ')  is  indispensable  ;  its  omission 
would  make  the  proceeding  void.  The  accused,  how- 
ever, need  not  appear  in  person,  but  may  henceforth  be 
represented  by  his  counsel.  The  final  proceeding  is 
opened  by  the  judge  or  the  presiding  officer  at  the  time 
appointed.  The  pleading  begins  with  the  charge  of  the 
fiscal  procurator,  who  repeats,  explains  and  substantiates 
the  same  identical  motions  and  allegations  made  by  him 
in  writing  after  he  had  read  the  acts  and  the  auditor's  ab- 
stract; he  cannot  make  a  new  charge  or  motion  or  bring 
in  new  matter,  because  the  defence  is  not  prepared  for  it. 
If  he  nevertheless  insists  on  doing  so,  the  court  will 
determine  whether  to  allow  it,  which  it  may  do  only 
under  the  express  condition  that  if  the  new  matter  be  in 
any  way  material  to  the  defence,  it  will  either  be  disal- 
lowed by  the  court  or  another  term  will  be  given  to  the 
defence  to  prepare  an  answer. 

Then  follows  the  defensive  pleading.  It  matters  not 
whether  the  accused  plead  first  or  his  counsel ;  as  each 
has  the  privilege  of  parol  pleading,"  though  they  may 
have  previously  handed  in  the  written  defence.  The 
fiscal  procurator  may  possibly  reply  to  the  argument  of 
the  defence ;  in  which  case  the  accused  or  his  counsel  has 
the  right  to  rejoin.  In  fact  the  proceedings  as  a  rule 
cannot  be  closed  before  defendant  or  counsel  declare 
that  they  have  nothing  more  to  say ;  in  other  words,  the 
defence  has  the  right  to  close. 

104.  When  the  parties  have  closed  their  pleadings,  the 
judge  must  consider  whether  the  cause  is  ready  for  judg- 

'  AJP.,  XX.  467. 

*  This  we  doubt.  To  us  the  Iiisir.  which  in  arts.  34.  35  makes  no  men- 
tion at  all  of  defendant,  but  only  of  his  advocate  or  counsel,  seems  there- 
by to  imply  that  counsel  alone  should  do  the  final  pleading  in  behalf  of 
the  defence.     Nor  do  those  articles  necessarily  imply  parol  pleading. 


174  The  Practice. 

ment  or  not.  If  it  is  not,  because  the  investigation  was 
defective,  and  some  points  remain  yet  to  be  cleared  up 
by  new  testimony  of  witnesses  or  experts,  he  must  prolong 
the  definitory  term  and  order  an  additional  inquest  to 
be  made  by  the  auditor.  In  the  other  case  he  must 
render  judgment  at  once.  According  to  the  Instruction 
art.  35,  sentence  is  pronounced  by  the  judge  immediately 
after  the  final  pleading  at  the  same  term,  and  put  in 
writing  by  the  chancellor.  If  the  court  consist  of  a  col- 
lege of  judges,  they  must  first  withdraw  to  deliberate  on 
the  verdict,  which  is  given  by  the  majority  of  votes.  The 
court  may  also  reserve  judgment  until  a  later  term,  but 
not  too  long.  Judgment  must  in  every  case  be  rendered 
by  the  same  judge  who  sat  for  the  final  hearing;  if  ren- 
dered by  any  other,  it  is  void.  The  parties  must  again 
be  summoned  for  the  day  when  judgment  will  be  given. 
They  may  be  cited  orally  while  still  present  at  the  final 
pleading. 

Sentence  is  to  be  given  in  presence  of  the  same  parties 
that  were  present  at  the  final  hearing,  i.e.  the  judge, 
chancellor,  prosecutor,  and  counsel  of  defendant.'  De- 
fendant himself  must  be  summoned,  but  need  not  appear. 
The  legal  requisites  of  the  sentence  were  explained  in 
n.  83.  A  certified  copy  of  the  sentence  is  given  to  the 
accused  or  his  counsel,  who  should  acknowledge  the  re 
ceipt  of  it  so  that  the  fact  may  be  recorded  in  the  chan 
eery:'  If  the  defendant  live  in  another  diocese  at  the 
time,  the  copy  of  the  sentence  will  be  sent  to  him  through 
the  authorities  of  that  diocese.  In  case  of  an  appeal  by 
the  fiscal  procurator,  a  copy  will  be  given  to  him  also;* 

'  Acta  S.  S.,  XV.  395:  "Nequit  minori  personarum  numero  causarum 
criminalium  judicium  edi."  While  the  I' Ordittario  mentions  only  ibe 
vicar- general,  the  Cum  Magnop.  mentions  also  the  bishop  (art.  34). 

'  Acta  S.  S.,  XV.  396,  550,  note  i. 

*  15  Dec    1857.     AJP.,  XX.  53. 


i 


Appeal  and  Recourse,  1 75 

but  the  original  written  sentence  must  always  remain  in 
the  chancery.'  In  case  of  a  full  acquittal,  the  acts  of  in- 
vestigation must  all  be  destroyed,  that  is  to  say  burned.' 


CHAPTER    III. 
THE  APPEAL. 


105*.  An  appeal,  in  the  wider  sense,  is  the  calling  upon 
a  higher  authority  for  redress  against  an  injury  or  griev- 
ance sustained  through  the  act  of  a  lower  authority.  Such 
recourse  was  mostly  taken  from  judicial  decisions,  and  in 
order  to  be  accepted  by  the  superior  court  had  to  be 
made  under  certain  conditions  or  legal  formalities. 
Hence  the  term  "  appeal  "  in  the  language  of  the  law 
came  to  be  used  in  a  technical  sense  of  the  removal  of  a 
cause  under  certain  formalities  from  the  lower  to  a  higher 
jurisdiction '  in  order  to  obtain  redress.  This  definition 
while  it  excludes  any  other  means  of  redress,  whether  it 
be  a  simple  recourse  or  a  plea  of  nullity,  covers  all  ap- 
peals judicial  and  extrajudicial.  By  the  first  is  meant  an 
appeal  from  a  judicial  act  or  anything  done  by  the  judge 
in  his  official  capacity  and  in  connection  with  a  judicial 
proceeding,  whether  it  be  a  final    or   incidental  action. 

■  12  June  1858.     AJP.,  XX.  i68. 

*  4  Apr.  1775.     AJP..  XIII.  53:  XX.  74. 

*  The  lower  jurisdiction  is  generally  called  in  Latin  judex  a  quo,  and 
ihe  higher  judex  ad  quern.  The  latter  is  called  in  English  the  appellate 
court  or  judge.  For  the  first  we  choose  the  term  jud;^i--appellee.  Ap- 
pellee (in  Latin  appellatus)  means  the  party  against  whom  an  appeal  is 
taken,  which  in  a  criminal  trial  is  the  state  or  attorney  general  (in  our 
case  the  bishop  or  the  fiscal  procurator).  In  an  extrajudicial  canonical 
appeal  it  is  mostly  the  bishop  {judex),  again,  who  is  appealed  against. 
Hence,  the  term  judge-apptlUe  sufficiently  serves  our  purpose. 


1 76  The  Practice. 

Judicial  appeals  therefore  they  would  be,  if  one  appeal 
from  a  final  or  interlocutory  sentence,  from  an  order  of 
the  judge  appointing  too  s'hort  or  limited  terms,  from  the 
ruling  out  of  some  evidence  or  plea  or  challenge,  from 
the  admission  of  incompetent  witness,  etc.  An  appeal  is 
extrajudicial  when  it  is  made  from  extrajudicial  acts  of 
the  superior  or  judge."  In  the  strict  judicial  sense  this 
ought  never  to  be  called  an  appeal  simply,  as  that  always 
means  a  judicial  one,  but  rather  informal  appeal  ok provo- 
catio  ad  caiisam,  i.e.  legal  application  for  redress.  To 
use  the  word  recourse  {recursus)  for  extrajudicial  appeal, 
as  a  few  seem  inclined  to  do,  is  confusing.  Recourse 
in  its  legal  sense  differs  from  an  informal  appeal  and 
may  be  had  only  where  neither  a  judicial  nor  an  extra- 
judicial appeal  lies.  Again,  an  extrajudicial  appeal  is  a 
formal  proceeding  subject  to  conditions  and  formalities 
defined  by  law,  while  a  recourse  is  a  plain  and  informal  act. 
Hence  an  extrajudicial  appeal  goes  through  the  regular 
order  of  the  higher  instances,  but  a  recourse  lies  directly 
to  Rome.  Finally,  an  extrajudicial  appeal  may  have  de- 
volutive and  suspensive  effect,  neither  of  which  belongs 

'  When  reading  older  Latin  canonists  a  little  confusion  in  this  matter 
of  extrajudicial  appeals  may  sometimes  arise  from  the  fact  that  they  use 
the  vjoxA  judex  indiscriminately  for  one  in  authority,  whether  he  be  at  the 
same  time  judge  in  the  strict  sense  or  not.  Hence  Grandclaude  in  tit.  de 
officio  Judicis  Ordinarii,  X.,  very  opportunely  remarks:  Judicis  nomen 
hie  lalius  sumitur,  scilicet  pro  eo  ornni  qui  exercet  jurisdictionem.  Nam 
judex  et  jurisdictio,  quoad  vim  nominis,  sunt  correlativa.  Hence  to  avoid 
mistakes  when  studying  the  canons  and  their  commentators  on  extra- 
judicial appeals,  we  must  discard  the  idea  that /moVx  frequently  calls  forth 
In  us.  Picrantonelli  generally  uses  the^  term  praelatus  instead  oi  judex. — 
Another  cause  of  confusion  is  the  wider  and  indiscriminate  use  of  the 
term  appellare  and  even  appellatio  by  which  sometimes  not  only  the  older 
commentators  bur  the  sacred  canons  themselves  indicate  any  recourse, 
formal  or  informal,  to  a  higher  authority.  On  appeals  consult  the  Com- 
mentators, 1.  II.  tit.  28;  Bouix,  II.  p.  246;  Jiota,  0.787  sqq. ;  Pierantonelli, 
tit.  V.  n.  32  sqq.;  Smith,  11.  1207,  and  especially  Utremler,  p.  369  ff. 


Appeal  and  Recourse.  i  T*] 

to  a  recourse.  Devolution  in  the  latter  case  is  merely 
per  accidens.^ 

The  main  difference  between  a  judicial  and  an  extra- 
judicial appeal  is  in  regard  to  the  suspensive  effect.  By 
a  judicial  appeal  the  jurisdiction  and  orders  of  the  judge- 
appellee  may  often  be  suspended  at  once  by  the  mere 
notice  given  of  the  appeal,  and  any  further  acts  of  his  be- 
come thereby  attentats  ;  but  an  extrajudicial  appeal  has 
no  such  suspensive  effect  before  the  appellate  jurisdic- 
tion has  ordered  the  retrial.'  Hence,  the  decisions  and 
orders  of  the  inferior  authority  are  valid  and  may  be 
executed  before  that  time,  but  not  while  the  case  is  being 
renewed.  With  regard  to  other  conditions  and  formali- 
ties, they  arc  substantially  the  same  whether  the  appeal 
be  of  the  one  or  the  other  kind.' 

io6.  When  either  of  the  parties  in  a  trial  is  dissatisfied 
with  the  judgment  he  may  appeal  to  the  competent 
higher  court  for  reversal.  But  the  judge  himself  who 
rendered  the  final  sentence,  can  no  longer  change  or  re- 
tract it,  except  on  a  plea  of  nullity  (see  n.  113).  Leaving 
this  aside,  the  condemned  party  may  claim  that  the 
judgment,  although  formally  valid  in  law,  is  yet  materially 
unjust  or  unfair ;  that  the  law  itself  has  been  wrongly 
applied  in  the  case ;  that  the  judgment  is  not  sufficiently 

'  For  these  reasons  we  choose  to  follow  Pierantonelli,  tit.  5,  n.  33,  and 
to  distinguish  between  recourse  and  extrajudicial  appeal.  Recursus  as  a 
technical  term  in  Canon  law  seems  of  recent  origin.  It  is  of  the  same 
kind  as  in  the  language  of  older  canonists  the  stipplicatio.  a  complaint  or 
a  grievance  with  the  prayer  for  redress.     See  n.  112. 

*  Santi,  h.  t.,  n.  3.  We  suppose,  though,  that  such  an  effect  would 
follow  only  upon  an  inhibition  issued,  -when  allo'wed,  by  the  superior 
jurisdiction.  Canon  law  and  commentators  deal  extensively  with  inhibi- 
tions, by  which  term  is  meant  an  order  issued  by  the  higher  jurisdiction 
upon  appeal  to  stay  proceedings  of  the  lower  one  against  the  appellant. 

'  For  this  reason  and  to  avoid  repetition  we  omit  the  author's  chapter 
on  extrajudicial  appeals.  What  is  here  said  on  judicial  appeals  applies 
equally,  mutatis  mutandis,  to  extrajudicial  ones. 


lyS  The  Practice. 

supported  by  the  evidence ;  that  the  sentence  is  too  severe 
and  undeserved,  etc.  Against  such  grievances  he  may 
seek  redress  by  an  appeal  to  a  higher  instance  only,  but 
never,  as  is  evident,  by  recourse  to  a  court  of  the  same  or 
perhaps  even  lower  jurisdiction.  An  appeal  is  granted 
only  twice  as  a  rule,  that  is,  from  the  episcopal  to  the 
metropolitan,  and  from  this  to  the  papal  court,  but  in  no 
case  can  there  be  three  appeals.' 

The  appeal  being  a  benefit  of  the  law  is  consequently 
subject  to  the  restrictions  imposed  by  the  law  upon  the 
right  of  using  it."^  Only  the  highest  jurisdiction,  the 
Pope,  can  declare  an  appeal  inadmissible  either  in  certain 
causes,  or  also  in  a  particular  case.^  But  where  an  appeal 
is  allowed,  the  aggrieved  party  may  renounce  this  benefit 
of  the  lav;  either  expressly  by  a  written  or  a  sworn  oral 
declaration,  or  tacitly  by  default.  But  the  cleric  con- 
victed in  case  of  contumacy  cannot  avail  himself  of  it  in 
punishment  for  his  contempt  of  the  court.*     The  appeal 

'  cc.  39,  65,  X.,  II.  28  ;  I  Clem.,  11.  11.     See,  however,  p.  40,  note  2. 

*  These  restrictions  are  tersely  expressed  in  the  following  verse,  which 
Reiffenstuel,  h.  t.,  n.  269  sqq  ,  fully  explains  : 

Appellare  vetant  scelus,  excellentia,  pactum, 
Arbitrium,  fatale,  aut  si  dilatio  nulla. 
Clausula  quae  removet,  res  quae  notoria  constat, 
Corrige,  contemptus,  possessio,  jus  quoque  clarum. 
Post  executio,  minima,  et  res  longius  acta. 

2  Cfr.  the  Roman  answer,  13  July  1886,  in  Appendix,  p.  241.  Canonists 
{Reiffenstuel  h.  t.,  n.  279  sqq.;  Schmalzgr.,  h.  t.,  n.  29  sqq.)  dispute 
much  on  the  force  of  that  famous  clause  :  omni  appellatione  remota, 
whether  it  occurs  in  a  papal  rescript  (c.  53,  X.,  h.  t.)  or  in  a  general 
statute.  Rota,  n.  816,  maintains  that  it  does  not  affect  those  cases  where 
the  right  to  appeal  is  expressly  stated  in  law,  and  that  in  regard  to  others 
it  merely  does  away  with  the  suspensive  force  of  the  appeal.  Santi,  h. 
t.,  n.  13,  14,  seems  to  think  that  it  forbids  an  appeal  altogether,  whether 
suspensive  or  only  devolutive,  except  in  the  cases  mentioned  in  the  law, 
and  that  it  only  leaves  the  choice  of  some  extraordinary  means  of  re- 
dress (see  infra,  112  ff.). 

*  See  Acta  S.  S.,  iv.  382,  nota. 


Appeal  and  Recourse.  1 79 

is  allowed  only  against  a  wrong  caused  by  a  judicial  or 
extrajudicial  decision  or  order  of  the  superior,  but  not  a 
wrong  done  by  the  law  itself.  For,  this  would  be  the 
same  as  to  impeach  the  law  which  was  rightly  applied 
against  him,  as  in  itself  unjust.  The  appellant  may  at 
most  maintain  that  the  law  applied  in  his  case  is  no 
longer  in  force,  that  for  some  reason  or  other  the  present 
case  does  not  come  under  this  law,  or  that  it  falls  under 
another,  etc.  Although  the  grievance,  the  wrong  done 
by  the  judgment,  is  somewhat  slight,  an  appeal  may  be 
taken  against  it.'  Since  the  Council  of  Trent  an  appeal 
can  be  taken  only  from  final  judgments,  or  such  inter- 
locutory judgments  as  have  the  force  of  final  ones,  and 
from  such  grievances  which  cannot  be  remedied  by  the 
final  sentence,  e.g.  imprisonment,  etc.*  An  appeal  is  al- 
ways presumed  admissible  until  the  contrary  is  proved 
No  appeal  can  be  taken  against  a  judgment  that  has  ob- 
tained the  force  of  law,  i.e.  become  res  judicata. 

It  is  easily  understood  that  where  an  appeal  is  legally 
excluded,  e.g.  by  the  lapse  of  \\\^  fat  alia  or  because  there 
is  no  higher  instance,  judgments  obtain  immediately  the 
force  of  law  as  regards  appeals. 

107.  The  effect  of  an  appeal  is  twofold,  as  a  rule, 
suspensive  and  devolutive.     A  lawful  appeal  suspends 

'  Alexander  II r.,  c.  II.  X.,  il.  28.  This,  however,  supposes  that  the 
wrong  though  slight  be  yet  real,  not  a  mere  trifle  or  notion,  but  worht 
the  while  of  such  legal  proceeding  as  an  appeal  is.  Otherwise  the  appeal 
would  be  what  the  law  calls  a  frivolous  one,  unreasonable,  not  taken  on 
sufficient  grounds  nor  for  good  cause  (jusla,  legilima).  Such  sham  ap- 
peals when  taken  for  the  purpose  of  evading  the  execution  of  the  sen- 
tence, are  called  fruslmtoriae ;  when  the  purpose  is  simply  lo  vex  and 
incommodate  the  appellee  they  are  said  to  proceed  ex  caluinnia.  It 
would  be  a  frivolous  undertaking  to  appeal  against  the  law  itself,  or  against 
a  sentence  that  is  evidently  just  and  fair,  or  in  notorio  No  appellate 
court  is  ever  justified  in  accepting  frivolous  appeals,  but  ought  to 
strongly  repress  them. 

*  C.  Trid..  S.  xxiv.  c.  20,  de  Ref.,   Bened.  XI V.  AJ  militantis,  %  43. 


i8o  The  Practice. 

the  legal  force  of  an  otherwise  valid  judgment  or  order, 
prevents  the  execution  thereof,  and  hinders  the  judge 
from  taking  any  further  action  in  that  matter.  The  de- 
volution by  appeal  consists  in  this,  that  henceforth  the 
superior  jurisdiction,  the  appellate  judge,  takes  cognizance 
of  the  case  in  question  and  brings  it  into  his  forum,  first 
to  pass  upon  the  admissibility  and  legality  of  the  appeal, 
and  if  admitted  to  decide  eventually  the  issue  itself,  to 
affirm,  modify  or  annul  the  judgment  of  the  lower  court. 
The  appeal  when  admissible  has  always  a  devolutive, 
but  not  always  suspensive  effect.  In  general  it  may  be 
said  that  appeals  against  sentences  which  impose  a  purely 
vindictive  punishment  have  suspensive  effect,  while  ap- 
peals in  matters  of  mere  correction  and  administration 
have  only  a  devolutive  effect.  This  important  matter  is 
minutely  regulated  in  the  bull  Ad  fnilitantis  of  Benedict 
XIV.,'  which  is  binding  and  in  force  to  this  day  {Instr., 
art.  37).  According  to  that  constitution  an  appeal  will 
have  no  suspensive  effect  in  the  following  matters  and 
affairs : 

1st.  The  holy  sacrifice  of  the  mass,  the  sacraments, 
preaching  and  Christian  doctrine,  the  care  of  souls,  divine 
worship  and  public  devotions." 

2d.  Refusal,  recall,  suspension,  restriction,  and  limita- 
tion of  the  faculty  to  hear  confessions,  especially  those  of 
regulars  and  nuns.' 

3d.  Suspension  and  privation  on  account  of  incorrigi- 
bility, and  the  consequent  appointments  of  substitutes 
and  vicars  in  spiriiualibus  ;*  censures  against  concubin- 
age and  violation  of  the  privilege  of  the  clergy ;"  censures 

'  See  Appendix.     This  famous  constitution  is  truly  a  codification  of  all 
the  fornoer  laws  and  decisions  in  matters  of  appeal.     See  §  4. 
»§§  6.  7.  8,  18.  19.  31-  '§§15.20,21. 

*  §  12.     We  call  special  attention  here  to  C.  PI.  B.  III.,  n.  286. 
»  §§  25.  26. 


Appeal  and  Recourse.  1 8 1 

latae^etferendae  senteniiae  generally,  if  not  appealed  from 
on  account  of  nullity ; '  sequestration  and  subtraction  of 
revenues  in  case  of  those  who  violate  the  law  of  resi- 
dence.* 

4th.  In  general  the  correctio  morum  of  the  clergy,  secular 
and  regular,  especially  when  made  during  the  canonical 
visitation  ; '  appointment  of  curates  and  assistants,  or  of 
vicars  and  substitutes  ;  *  division  of  parishes,  erection  of 
new  ones,  regulation  of  boundaries  between  them  ;  ad- 
ministration, translation,  and  union  of  benefices;  restora- 
tion of  church  buildings,  and  all  financial  affairs.* 

An  important  consequence  of  the  suspensive  effect  of 
an  appeal  is  that  all  further  proceedings  by  the  lower 
jurisdiction  in  the  matter  appealed  against  become  so 
many  attentats  in  law*  when  instituted  either  within  the 
ten  days  allowed  for  the  appeal,  or  after  the  notice  given 
of  the  appeal,  or  after  an  inhibition  decreed  by  the  ap- 
pellate superior.  A  peculiar  effect  of  a  judicial  appeal  is 
that  appellant  may  recuse  as  suspect  the  judge,  from 
whom  he  appealed,  if  pending  the  appeal  he  should  be 
summoned  for  trial  in  the  same  court  to  answer  upon 
another  charge.^  But  if  he  obey  the  summons  and  is 
willing  to  be  tried  before  the  same  judge,  the  proceeding 
is  valid,  nor  can  he  afterwards  appeal  on  a  plea  dejudice 
suspecto.  Moreover,  proceedings  on  the  principal  issue 
must  be  stopped  upon  appeal  from  an  interlocutory  judg- 
ment given  on  such  an  incidental  question,  which  if  not 

'  §§  23,  36.  *  §  14-  *  §§  1.9.  20,  21,  24.  25.  26. 

*§^  9,  10.  IT,  12.  17.         *  §§  13.  16.  17.  22,  28.  29,  30,  32,  34,  35. 

•  c.  7,  in  6°.  h.  t.  Such  acts  are  called  attentats  {altentata)  to  indi- 
cate that  they  are  mere  attempts  devoid  of  any  legal  force  or  effect,  and 
that,  moreover,  they  are  unlawful  attacks  upon  the  safety  and  immunity 
of  the  appellant  granted  by  the  law.  which  demands  that  pending  an  ap- 
peal nihil  innovetur.     Cfr.  Feiffenstuel,  h.  t.,  n.  249  sqq. 

'  cc.  6.  24,  X.,  h.  t.,  except  in  case  of  a  manifest  crime. 


1 82  The  Practice. 

first  decided  and  settled  may  prejudice  the  main  issue 
and  materially  affect  the  final  judgment.' 

io8.  The  proceedings  in  case  of  appeal  are  very  simple. 
The  appeal  is  entered  *  with  the  judge-appellee.  If  entered 
at  the  same  sitting  of  the  court  when  judgment  is  given, 
the  appeal  may  be  entered  by  word  of  mouth  or  in  writ- 
ing, but  at  any  other  time  it  must  be  in  writing.  In  the 
first  case  it  is  enough  to  say,  "  I  appeal,"  or  any  other 
words  that  will  clearly  and  unequivocally  express  the  in- 
tention of  recourse  to  the  higher  court.'  Notice  of  the 
appeal  so  taken  must  at  once  be  entered  on  the  minutes. 
But  if  notice  of  the  appeal  be  given  in  writing,  appellant 
must  clearly  designate  himself  as  such,  and  in  particular 
give  the  names  of  the  judges  a  quo  and  ad  quern,  and  the 
judgment,  order  or  decision  against  which  he  appeals. 
Appeals  from  interlocutory  and  extrajudicial  judgmentj 
must  be  made  in  writing  and  moreover  state  the  grounds 
of  the  complaint  or  grievance  ;  for  in  this  case  the  judge- 
appellee  himself  may  at  once  modify  or  set  aside  his 
former  decision.* 

The  appeal  must  be  entered  within  ten  days  from  the 
moment  when  judgment  was  officially  intimated  to  the 
defendant.'     This  peremptory  term   has   ever  been  the 

'  Rota,  n.  8,  14;  Santi,  h.  t.  n.  35. 

*  To  enter  att  appeal  means  to  give  notice  to  the  judge  (or  to  the  bishop 
in  extrajudicial  appeals)  that  the  matter  at  issue  on  which  judgment  or 
some  ordinance  had  been  given  by  him,  is  to  be  removed  to  a  higher 
jurisdiction  for  reversal.  Hence,  it  is  always  entered  with  the  judge- 
appellee.  Notice  of  such  an  appeal  already  entered  must  then  be  given 
to  the  higher  court  by  the  lower  one  in  the  so-called  apostoli.  Only  after 
the  higher  court  has  become  satisfied  that  the  appeal  is  lawfully  taken  in 
matter  as  well  as  in  form,  may  appeUant  prosecute  the  appeal,  that  is,  in- 
stitute, as  plaintiff  now  and  no  longer  defendant,  judicial  proceedings 
before  the  appellate  court. 

^  cc.  34,  52,  X.,  h.  t.  *  c.  59.  X.,  II.  28. 

*  Instr.,  art.  38.  This  is  the  first  term  in  appellate  proceedings.  The 
next  is  a  term  of  thirty  days  to  demand  the  dimissory  letters.     The  third 


Appeal  and  Recourse.  i  Z^ 

same  since  Justinian  till  the  present  day  and  is  the  gen- 
eral rule  of  Canon  law.'  Attempts  have  always  been 
made  to  take  appeals  after  that  legal  term  had  expired, 
but  numberless  decisions  prove  that  the  S.  Congregations 
have  uniformly  refused  to  entertain  them.  The  law  al- 
lows exceptions  only  where  it  was  impossible  for  de- 
fendant to  enter  the  appeal  within  the  term  fixed,  whether 
the  obstacles  were  of  a  physical  or  a  moral  nature,  e.g. 
error,'  fear,*  etc.* 

If  the  inferior  judge  do  not  accept  the  appeal  or  seek 
to  prevent  it  by  threats  or  other  means,  the  appellant 
may  lodge  the  appeal  with  the  higher  court  upon  affi- 
davit by  witnesses  that  he  tried,  though  without  success, 
to  enter  the  appeal  in  the  lower  instance  ;  or  if  appellant 
start  within  ten  days  on  a  journey  to  the  appellate  judge, 
it  will  be  equivalent  to  an  appeal.* 

The  judge  with  whom  the  appeal  is  entered  must  in- 
quire only  as  to  certain  formalities,  whether  it  be  admis- 
sible in  law,  whether  it  was  lodged  within  the  ten  days, 
and  in  writing  and  with  the  required  data,  viz.  the  names 
of  appellant,  appellee,  appellate  judge,  and  the  judgment 
appealed  from.  But  he  has  no  authority  to  examine  and 
decide  the  matter  itself,  or  whether  his  judgment  be  actu- 
ally based  on  some  error  of  fact  or  law,  whether  appellant 
may  obtain  a  reversal  or  not."  In  fact  he  must  refrain 
from  exercising  any  further  jurisdiction  in  the  case  until 

is  the  time  appointed  when  appellant  must  open  the  case  {intraducere 
appellationem)  in  the  appellate  court.  The  last  term  is  the  time  when 
the  trial  must  be  ended,  that  is,  one  year  as  a  rule,  or  two  at  most.  These 
terms  were  fixed  by  the  law  in  order  to  prevent  interminable  trials,  and 
to  secure  justice  against  fraudulent  delays.  For  this  reason  they  are  per- 
emptory. The  last  moment  of  any  one  of  these  terms,  if  wilfully  neglected, 
puts  an  end  to  the  appeal  once  for  all,  it  is  absolutely  fatal.  Hence,  they 
are  called  in  \aM  fatatia  appellationwn.     Reiffenstnel,  h.  t.,  n.  152  sqq. 

'  iV<;/a,  n.  805.         «c.6g.  X.,  h.  t.         »  c.  73.  X,  h.  t. 

■•  Hota,  n,  806.        «  c.  52,  X,  h,  t,         «  2f  Mch.  1854.     AJP.,  xx.  158. 


184  The  Practice. 

settled.  If,  however,  the  appeal  is  merely  interlocutory,' 
the  judge  may  proceed  in  the  matter  after  having  modi- 
fied or  reversed  the  order  to  the  satisfaction  of  the 
appellant.' 

109*,  Canon  law  formerly  fixed  a  term  of  thirty  days 
from  the  time  appellant  was  notified  of  the  judgment  or 
decision,  within  which  he  had  to  ask  for  the  apostles.* 
Until  a  certain  day  appointed  by  the  lower  court  he  had 
to  present  these  apostles  to  the  appellate  judge.  One 
year  was  given  him  to  prosecute  the  appeal  and  have  the 
cause  decided/  But  the  new  Instruction,  as  Rota,  n.  851, 
truly  says,  differs  not  a  little  from  the  former  custom. 
According  to  art.  39,  appellant  need  not  demand  the 
apostles,  but  after  the  appeal  is  entered  the  court  will  at 
once  send  all  the  original  {aiitograpJid)  acts,*  i.e.  the 
proces-verbal,  the  auditor's  summary,  the  written  defence 

'  And  also  if  extrajudicial. 

*c.  60,  X.,  n.  28. 

^  Apostoli  {libelli  dimissorii)  are  letters  to  the  appellate  court  by  which 
the  judge  with  whom  an  appeal  is  lodged  certifies  that  the  appeal  was 
made  in  proper  time  and  legal  form.  They  may  be  simply  diinissory  let- 
ters by  which  the  judge  dismisses  the  whole  cause  to  the  appellate  court, 
because  he  considers  the  appeal  well  taken.  Or  ihey  may  be  reverential, 
stating  that  he  sends  the  case  up  on  account  of  his  deference  and  respect 
towards  the  higher  authority,  but  not  because  of  the  admissibility  or  any 
solid  ground  of  the  appeal.  Finally,  these  letters  may  be  refutatory,  by 
which  he  simply  attests  the  appeal  entered,  but  at  the  same  time  protests, 
for  reasons  assigned,  against  its  being  entertained  by  the  higher  court, 
Cfr.  Reiffenstuel,  h.  t.,  n.  124  sqq. — Article  39  of  the  Instruct'w  does  not 
prevent  the  bishop  in  case  of  appeal  from  sending  letters  of  the  one  or 
other  kind,  or  any  other  comments  and  explanations,  along  wiih  the  acts. 
Cfr.  C.  Trid.,  S.  xxiv.  c.  20,  de  Ref. 

*  These  and  other  rules  of  the  general  law  are  fully  explained  hy  Droste, 
but  we  omit  this  part  as  rendered  impracticable  by  the  Instr. 

*  Formerly,  as  Droste  observes,  a  copy  or  transcript  of  the  original  acts 
was  given  under  seal  to  the  appellant,  who  would  then  himself  send  it  to 
the  higher  court.  By  a  law  of  Clement  VIII.,  a.  1600,  the  originals  were 
to  be  sent  only  if  a  plea  was  made  during  the  appellate  trial  that  the 
transcript  had  be^^n  forged  and  could  not  be  relied  upon. 


Appeal  and  Recourse,  *  1 85 

(also,  we  think,  the  prosecutor's  final  charge),  and  the  sen- 
tence to  the  appellate  judges  who  must  without  delaying 
too  long  take  proper  cognizance  of  the  appeal  (art.  40). 
He  must  then  inquire  whether  the  appeal  is  admissible  in 
law  and  made  in  proper  time  and  form.  If  satisfied  of 
its  full  legality  he  will  notify  the  appellant  through  the 
lower  court '  that  within  twenty  days'  from  this  notifica- 
tion he  must  appoint  an  attorney  for  his  defence,  to  be 
approved,  however,  by  the  appellate  court.  This  term  is 
peremptory  (art.  41);  hence,  if  allowed  by  appellant  to 
lapse  without  having  complied  with  the  order,  he  will  be 
considered  as  having  renounced  the  appeal.  A  decree  of 
the  appellate  court  to  this  effect  will  moreover  lay  the 
costs  on  him.  The  appeal  then  goes  by  default,  and  the 
judgment  of  the  first  court  becomes  res  Jucitcata.  But 
if  he  prosecute  the  appeal  in  proper  time,  the  appellate 
court  will  fix  the  time  for  the  opening  of  the  case. 

no.  The  judicial  trial  or  procedure  in  the  appellate 
court  is  the  same  as  that  in  the  first  court  [Instr.,  art.  42). 
We  may  remark,  moreover,  that  the  whole  cause  or  issue, 
the  same  as  tried  in  the  first  instance,  goes  up  and  may  be 
tried  again  in  regard  to  law  as  well  as  fact.  Appellant  must, 
therefore,  present  to  the  court  in  writing  the  reasons  and 
grounds  of  his  appeal  together  with  the  evidence  to  sup- 
port them.*  They  must  also  be  communicated  to  the 
appellee,  who  may  on  his  part  look  for  and  produce 
counter-evidence.  If  the  facts  as  found  in  the  first  trial 
are  not  denied  by  the  appellant,  a  review  or  new  trial  is 
not  necessary,  and  judgment  may  be  based  upon  the 
former  acts.*     But  if  appellant  demands  a  new  finding 

'  Rota,  n.  851. 

'  Cum  Afagnopere,  art.  39,  gives  thirty  days. 

*  c.  3,  in  6°,  h.  t  ;  c.  70,  X..  h.  t. 

*  That  is,  matters  of  law  merely  will  be  examined,  as  in  Common  law, 
upon  a  writ  of  error. 


1 86  •  The  Practice. 

of  facts  and  further  testimony,  it  should  ordinarily  be 
granted.  The  appellate  judge  may  in  that  case  appoint 
an  auditor  to  institute  new  proceedings.  If  the  judg- 
ment of  the  first  instance  be  declared  void  on  account  of 
essential  defects  in  the  procedure,  the  case  must  be  sent 
back  for  a  new  trial.  Otherwise  the  former  judgment  is 
either  affirmed  or  reversed. 

III.  With  regard  to  the  absolution  from  censure  in  case 
of  appeal  made  against  them,  clear  and  definite  rules  were 
laid  down  by  Popes  Clement  VIII.  and  Benedict  XIII.' 
If  the  appellate  judge  find  the  censures  clearly  unjust, 
he  will  himself  absolve  the  appellant.  If  the  censure  is 
just  and  deserved,  appellant  must  be  sent  back  in  order 
that,  having  given  signs  of  amendment,  he  may  humbly 
ask  absolution  from  the  bishop  who  inflicted  the  censure. 
When,  however,  the  justice  of  the  censure  is  doubtful, 
then  it  is  more  appropriate  {honestius)  that  the  appellate 
judge  request  the  bishop  to  grant  absolution  within  a 
definite,  short  time,  though  he  may  also  himself  absolve 
the  appellant.  Should  he  order  the  absolution  with  the 
clause  cum  reincidentia  (the  effect  of  which  is  that  the 
person  thus  absolved  will  in  case  of  disobedience  to  the 
court  immediately  reincur  the  censure),  the  appellant 
must  address  himself  to  his  bishop  with  that  order  and 
pray  for  the  absolution.  If  he  is  not  absolved  within 
three  days,  as  stated  in  the  writ  or  commission,  any  ap- 
proved confessor  may  absolve  him  juxia  commissionis 
formam. 

Each  case  brought  before  the  appellate  court  should 
be  finally  decided  in  one  year  if  possible;  at  least  they 
should  never  drag  on  over  two  years.' 

'  In  Collect.  Lac.,  vol.  i.  pp.  427  ff.,  529  ff. 

'  23  Jan.  1880.     Acta  S.S.,   xii.  635.      On  appellate  procedure  before 
the  S.  C.  Epp.  at  Rome,  see  the  decrees  in  Appendix,  p.  235  ff. 


Extraordinary  Means  of  Redress,  187 


CHAPTER  IV. 

EXTRAORDINARY  MEANS  OF  REDRESS. 

112.  The  object  of  criminal  procedure  is  to  serve  truth 
and  justice.  In  the  search  for  truth,  however,  man  often 
errs,  especially  where  prejudice  and  passion  reign.  To 
restrain  these  as  much  as  possible  and  to  do  all  that  man 
can  to  come  at  least  near  the  truth,  there  are  legal  rules 
and  norms  and  forms  of  judicial  procedure,  the  prosecu- 
tion and  the  defence,  the  examination  of  witnesses,  the 
legitimation  of  the  process,  offensive  and  defensive  plead- 
ing, and,  lastly,  the  appeal.  Neglect  of  material  forms 
will  entail  nullity  of  proceedings.  Yet  after  the  canonical 
trial  has  wound  its  way  through  all  these  stages  and  even 
passed  the  highest  instance,  still  some  one  error  may  be  left 
undiscovered  ;  judgment  may  yet  be  false  and  the  punish- 
ment imposed  unjust.  For  this  reason  it  has  well  been 
said  that  no  criminal  sentence  ever  becomes  irrevocably 
law  {res  Judicata).  For  no  punishment  must  be  inflicted 
for  crime  erroneously  presumed,  or  which  is  not  fully 
deserved.  Hence,  when  we  speak  of  the  absolute  validity 
of  a  criminal  sentence,  we  only  mean  that  it  can  no  longer 
be  set  aside  by  the  ordinary  means  of  the  law  and  that 
consequently  it  must  be  executed.  What,  then,  are  those 
other  means  by  which  a  judgment  that  has  full  and  abso- 
lute force  in  law,  can  be  reversed  or  its  execution  stayed? 

The  first  of  these  extraordinary  legal  remedies  is  t/ie 
recourse,^  a  written  petition  to  the  highest  authority,  the 
Pope,  praying  him  to  order  in  virtue  of  his  supreme 
power  a  rehearing  of  the  cause  already  decided  but  now 

*  See  supra,  n.  105. 


1 88  The  Practice. 

unappealable.  The  petition  was  formerly  called  supplu 
catio,  and  the  retrial  or  review  of  the  case  retractatio ; 
both  are  often  used  indiscriminately.  Modern  jurists 
prefer  the  term  rcvisio.^  A  revision  of  a  finally  adjudi- 
cated issue  can  be  granted  by  the  Pope  alone,  who  will  do 
so  only  for  the  gravest  reasons  which  are  first  to  be 
examined  in  a  plenary  session  of  the  S.  Congregation.' 
A  revision  of  decisions  given  by  the  Pope  or  a  general 
Council  will  not  be  granted. 

Neither  the  recourse  nor  the  consequent  review  have 
any  suspensive  effect.  The  first  judgment  may  be  exe- 
cuted ;  it  may  be  suspended  if  within  ten  days  notice 
of  the  recourse  is  given  to  the  judge  who  tried  the  case. 
Revision  will  be  granted  only  once  in  the  same  cause.' 

113.  From  the  recourse  we  must  distinguish  the 
querela  nullitatis*  the  complaint  of  nullity,  by  which 
complainant  avers  that  the  decision  of  the  bishop,  judi- 
cial or  extrajudicial,  is  simply  null  and  void.*  This  com- 
plaint can  be  lodged  with  the  first  court,  who  may,  after 
examining  the  objections  and  finding  them  true,  make  a 
declaration  to  that  effect  and  put  things  back  in  statu 
quo.     Or  it  may  at  once  be  taken  to  the  higher  court," 

'  Reiffenstuel,  1.  II.  tit.  28,  n.  18  sqq. 

^  Cfr.  the  decree  S.  C.  Epp.  1835,  art.  14,  in  Appendix. 

'  Although  our  modern  recursus  in  Canon  law  is  really  the  same  as 
Justinian's  supplicatio,  yet  it  does  not  necessarily  lead  to  a  retractatio  in 
the  strict  sense.  Rome  may  take  up  the  matter  there,  as  in  case  of  an 
appeal,  to  give  it  a  regular  trial  or  only  to  review  the  questions  of  law 
implied;  she  may  appoint  a  referee,  residing  in  Rome  or  at  the  place  of 
petitioner,  to  report  on  the  case;  she  may  provide  in  any  other  way  that 
she  thiniis  best  under  the  circumstances.  Like  our  recourse,  the  suppli' 
catio  was  an  absolutely  informal  and  extrajudicial  proceeding. 

*  Keiffenstuel,  1.  ii.  tit.  28,  n.  23  sqq.;  tit.  27,  n.  135  sqq. 

*  Null  and  void  is  every  sententia  contra  leges  canonesve  prolata  (Gloss). 
Judgment  may  be  void  on  account  of  incompetency,  or  because  of  ir- 
regular proceedings,  or  through  a  substantial  error.     See  Rota,  n.  854. 

*  This  is  the  prevailing  practice. 


Extraordinary  Means  of  Redress.  189 

whose  decision  will  be  always  conclusive.  No  special 
legal  forms  need  be  observed  in  making  the  complaint, 
nor  is  it  limited  to  any  certain  time.'  It  also  has  a  sus- 
pensive effect.*  If  the  complaint  of  nullity  is  sustained, 
the  case  will  be  tried  again  in  the  first  court." 

In  a  wide  sense  we  may  class  with  the  complaint  of 
nullity  a  proceeding  exclusively  observed  in  civil  mat- 
ters and  known  in  Canon  and  Civil  law  as  restitutio  in 
integrum*  that  is,  reinstatement  or  complete  return  of 
things  to  their  former  state.  A  complaint  of  nullity  in 
disciplinary  and  criminal  cases  may  have  a  similar  ef- 
fect. For  instance,  where  judgment  in  contumacy  was 
rendered  against  a  person  being  on  a  distant  journey 
and  therefore  legally  excused  because  unable  to  appear ; 
also  when  of  two  witnesses  who  were  considered  com- 
petent and  by  whose  testimony  defendant  was  convicted, 
one  or  both  are  afterwards  proved  to  have  sworn  falsely ; 
or  when  the  document  on  whose  evidence  judgment  was 
based,  turns  out  to  be  a  forgery  ;  again,  when  the  judge 
has  warped  and  misused  the  law  ;  when  the  defender  has 
betrayed  his  client ;  when  the  person  convicted  produces 
new  and  full  evidence  of  his  innocence, — in  such  cases 
judgment  must  be  reversed  as  null  and  the  condemned 

'  The  judgement  being  assumed  to  be  null  can  never  obtain  force  of 
law;  for,  says  the  Gloss,  "nothing  has  no  qualities."  Cfr.  Acta  S.  S., 
XVII.  156,  582. 

*  Not  exactly.  Canonists  in  1.  II.  (Reiffenstuel,  tit.  28,  n.  26;  Schmakgr., 
tit.  27,  n.  log;  Rota,  n.  854)  commonly  teach  that  the  plea  of  nullity  has 
no  suspensive  force  and  consequently  will  not  stay  the  execution  of  the 
judgment,  except  in  case  of  such  a  criminal  sentence  that  once  executed 
could  not  be  remedied  even  if  afterwards  proved  to  have  been  void. 

'  Not  necessarily.  An  examination  of  the  grounds  on  which  the  com- 
plaint of  nullity  is  raised  may  show  that  there  is  no  cause  at  all  or  no 
sufficient  one  to  institute  a  trial,  and  that  things  should  rather  be  left  as 
ihey  were  before  the  first  proceeding;  which  might  in  a  sense  be  called  a 
reinstatement. 

*  See  Commentators  in  1.  1.  tit.  41. 


IQO  The  Practice. 

party  reinstated.*  Cases  of  the  kind  are  so  various  that 
it  is  impossible  fully  to  enumerate  and  classify  them. 

Finally,  we  may  observe  that  complaints  may  be  made 
against  the  judge  for  denying  some  right,  delaying  the 
proceedings  and  similar  causes ;  against  the  ofificers  of 
the  court  for  chicanery,  etc.  Such  complaints  will  ordi- 
narily be  addressed  to  the  immediate  superiors  of  those 
whom  they  concern. 

1 14.  In  connection  with  our  subject  we  must  neces- 
sarily mention  the  abolition^  by  which  we  understand 
here  the  withdrawal  or  dismissal  of  a  criminal  cause  on 
the  part  of  the  proper  authority.  This  may  be  done  in 
three  ways :  before  the  formal  charge,  during  the  trial, 
and  after  the  sentence. 

The  Ordinary  has  always  the  right  to  make  informal 
inquiries  at  any  time  either  in  person  or  through  others, 
cleric  or  laic.  Not  to  speak  of  his  rights  and  duties  as 
pastor  of  the  flock,  such  private  inquiries  every  person, 
the  bishop  too,  can  make ;  for  every  one  may  inform 
himself  of  what  another  is  doing,  though  that  other  one 
happen  to  be  an  ecclesiastic.  Yet  we  do  not  assert  that 
such  inquiries  can  never  be  wrong  or  sinful.     Thus  when 

'  Acta  S.  S.,  VIli.  614. 

'  Abolition  is  a  term  of  Civil,  not  of  Canon  law.  It  comes  nearest  to 
what  in  Common  law  is  called  "to  quash  the  proceeding."  Sometimes 
its  effect  is  the  same  as  that  of  an  "arrest  of  judgment,"  or  of  a  "nolle 
prosequi;"  and  when  referring  to  the  execution  of  a  sentence  it  acts  like 
a  "  pardon."  As  a  kind  of  abolition  we  may  also  take  what  is  called  in 
Civil  and  Canon  law  "a  transaction,"  or  "  a  compromise"  in  Common 
law.  Transaction  in  the  strict  sense  is  "an  agreement  made  for  con- 
sideration (conventio  non  graiuita)  by  which  parties  settle  a  dispute  or  a 
judicial  suit  between  them."  In  the  latter  case  it  had  to  be  made  before 
judgment  became  conclusive  or  absolutely  final.  Commentators  in  1. 1, 
tit.  36,  de  transact.,  inquire  whether  Canon  law  allow  such  a  compromise 
in  a  criminal  trial  (cfr.  compounding  a  criminal  offence),  and  answer  by 
denying  it,  except  the  crime  be  punishable  by  what  Canon  law  considers 
equivalent  to  a  capital  sentence;  e.g.  excommunication,  degradation, 
perpetual  infamy,  etc. 


Extraordinary  Means  of  Redress.  191 

oflficial  persons  make  such  inquiries  (especially  when  they 
have  come  a  great  distance  for  the  purpose)  it  very  easily 
causes  excitement  and  suspicion  among  the  people  by 
which  the  reputation  of  the  priest  may  be  injured. 
Against  such  an  inquiry,  imprudent  and  indiscreet  and 
only  giving  rise  to  scandal,  every  priest  would  rightly 
complain  to  higher  authority. 

Private  and  extrajudicial  inquiries  the  bishop  has  a 
right,  whatever  his  reasons  be,  to  stop  at  any  stage  and 
without  bringing  a  charge  even  where  that  could  be  done. 
This  as  far  as  the  priest  is  concerned.  But  whether  as 
bishop  and  pastor  animariim  he  act  wisely  in  thus  arrest- 
ing further  inquiry  and  possibly  a  criminal  charge,  is  an- 
other question.  It  might  even  be  a  case  where  the  rest 
of  the  clergy,  the  congregation,  or  a  private  person  has  a 
right  to  demand  that  disciplinary  or  criminal  proceedings 
be  instituted,  and  where,  if  refused,  they  are  bound  to 
lodge  a  complaint  against  the  bishop  with  the  higher 
ecclesiastical  authority. 

Criminal  proceedings  once  begun  must  be  carried  to  the 
end,  to  acquit  or  to  condemn.  The  bishop  having  opened 
those  proceedings  certainly  not  because  defendant  ap- 
peared innocent,  but  because  there  were  some  grounds  to 
suspect  him  guilty,  is  in  justice  bound  to  carry  the  mat- 
ter through ;  for,  the  accused  if  innocent,  as  he  may  be, 
has  now  a  right  to  a  public  judgment  in  his  favor.  Be- 
sides, crimes  and  criminal  procedure  are  in  the  Church  as 
in  the  State  objects  of  the  public  law.  Hence  the  bishop 
has  no  right  to  stop  criminal  proceedings  begun  for  cause, 
even  if  the  accused  did  consent,  except  where  higher  in- 
terests demand  it.  By  the  accusation  the  honor  and 
good  name  of  the  ecclesiastic,  which  is  to  him  as  neces- 
sary for  efficient  labor  as  his  life,  is  attacked.  But  as  life 
is  not  at  his  own  disposal,  neither  is  his  honor  nor  his 
reputation.     Higher  interests  may  be  involved.     If,  e.g.. 


192  The  Practice. 

the  State  or  people  threaten  to  interfere  ;  or  if  the  bishop 
himself  would  be  drawn  into  difficulties  and  possibly  lose 
the  high  respect  due  to  his  office  and  authority, — such 
consequences  would  be  far  more  injurious  to  the  faithful 
of  the  diocese  than  if  the  reputation  of  the  pastor  of 
some  small  district  were  to  suffer  by  leaving  his  cause 
untried.  In  such  cases  judicial  proceedings  may  be 
quashed,  especially  as  any  injury  may  be  to  some  extent 
or  even  fully  repaired  by  transferring  the  accused  to 
another  place. 

An  unlimited  right  to  arrest  criminal  proceedings  at 
any  stage,  even  contrary  to  defendant's  wishes,  belongs 
exclusively  to  the  Pope  as  supreme  legislator  and  judge. 
This  right  he  has  often  used  for  the  ^ood  of  the  Church. 

With  regard  to  the  punishment  imposed  by  judicial 
sentence,  the  bishop  has  no  power  to  remit  it,  for  this 
would  be  equivalent  to  a  reversal ; '  but  no  court  can  re- 
verse its  own  final  sentence ;  nor  can  the  bishop  do  it, 
even  when  the  matter  is  not  yet  definitely  adjudicated.* 
Still  the  bishop  has  the  power  to  commute  one  discipli- 
nary punishment  with  another/  for  its  purpose  is  simply 

'  Not  at  all.  The  sentence  may  remain  on  record  without  being  re- 
versed. But  for  cause  the  punishment  may  be  remitted.  In  giving 
sentence  the  bishop  would  act  as  judge,  in  remitting  the  punishment  as 
legislator.  It  would  simply  be  a  pardon.  The  question,  therefore,  is 
this"  can  the  bishop  pardon  a  cleric  legally  sentenced  ?  We  distinguish: 
if  the  offence  was  committed  against  the  bishop's  own  laws  or  diocesan 
statutes,  he  certainly  can;  if  the  offence  was  against  a  general  law  of  the 
Church,  he  cannot  do  it.  Pardon  in  this  case  is  reserved  to  the  Pope. 
Bizzan,  p.  181,  cites  the  following  decree,  8  Jan.  1858:  "  SSmus  decla- 
ravit  dispensationem  a  poenis  inflictis  per  sententias  latas  a  tribunalibus 
criminalibus  curiarum  episcopalium  reservatam  esse  Summo  Pontifici; 
et  idcirco  episcopos  ab  hujusmodi  dispensationibus  concedendis  absti- 
nere  debere."  There  is  no  conflict  between  this  decree  and  the  opinion 
just  expressed. 

«  S.  C.  Epp.,  8  Jan.  1858,     AJP.,  xiii.  53. 

*  26  June  1S54.     AJP..  x.x.  159. 


Execution  and  Costs.  193 

to  correct.  When  delinquent  is  thoroughly  reformed, 
the  object  of  the  punishment  is  attained.  Such  punish- 
ment is  sometimes  imposed  for  an  indefinite  period ;  its 
remission  is  therefore  shown  by  the  very  sentence  to  be 
conditional  upon  the  amendment  and  good  conduct  of 
the  delinquent. 

The  Pope  alone,  as  sovereign  and  head  of  the  Church, 
has  the  full  right  to  pardon  or  to  stay  the  execution  of 
any  sentence.' 


\ 


CHAPTER  V. 

EXECUTION  AND   COSTS. 


115.  A  criminal  sentence  should  not  be  executed*  until 
it  has  obtained  full  force  in  law.  The  execution  will  be 
different  according  to  the  nature  of  the  punishment  im- 
posed. 

Censures  begin  to  operate  or  exert  their  force  at  the 
same  time  as  the  sentence  by  which  they  are  imposed ; 
z^wsyWXQs,  latae setitentiae  dSi6.  those  threatened  by  the  judge 
are  ipso  facto  incurred  at  the  moment  of  the  culpable  act 
or  omission.  But  in  order  that  they  may  obtain  their 
effect  also  in  the  external  forum,  it  requires  an  official 
declaration  that  they  have  been  incurred.  By  this  the 
punishment  is  also  executed  in  foro  extcrno.  Some  vin- 
dictive punishments  are  executed  in  the  same  way,  i.e. 

'28Junei854.  AJP.,xx.  159.  The  A  J  P.,  xi.  604  fT.,  give  an  interest- 
ing case  of  an  abolition  by  Benedict  XIII.,  a.  1724.  in  the  criminal  trial 
of  Bishop  Andrea  de  Robertis. 

'  On  the  execution  of  judgments  see  Commentators  in  1.  II.  tit.  27; 
Bouix,  II.  237.  On  canonical  punishments  see  Commentators  in  1.  V.  til. 
37  sqq.    Some  good  remarks  on  the  subject  see  ap.  Kota,  n.  751  sqq. 


194  T^^^  Practice. 

simultaneously  when  sentence  is  pronounced.  The  sen- 
tence depriving  one  of  Christian  burial  is  put  in  execu- 
tion by  simply  omitting  such  burial.  Suspension,  trans- 
fer, or  removal  from  an  oflfice  {privatio  beneficii)  leaving 
one  eligible  for  another,  deposition  involving  the  loss 
of  the  rights  of  the  priesthood  as  well  as  the  jurisdiction 
but  leaving  the  benefit  of  the  clergy,  are  actually  effected 
by  the  sentence,  and  non-submission  is  a  new  or  rather 
continued  offence  whereby  other  punishments,  e.g.  irreg- 
ularity, are  sometimes  incurred.  All  defamatory  punish- 
ments bring  irregularity  with  them.  Degradation,  i.e. 
the  real  degradation  in  solemn  form,  can  be  executed  by 
the  bishop  only,  who  must  associate  with  himself  other 
bishops  and  abbots.' 

T 16.  It  is  a  generally  accepted  principle  that  costs  fall 
upon  him  who  has  caused  them,  that  is  to  say,  in  case  of 
conviction  on  the  person  condemned,"  and  in  acquittal  on 
the  diocesan  fisc,  i.e.  the  bishop.  The  costs  of  the  pre- 
vious inquest  fall  likewise  on  the  fisc  if  no  trial  followed. 

Who  shall  pay  the  costs  is  generally  stated  in  the  sen- 
tence ;  nor  are  costs  due  before  the  sentence  has  become 
law  ijes  judicata).^     Till  then  each  party  pays  his  own 

'  C.  Trid.,  S.  xiii.  c.  4,  de  Ref.  We  omit  Droste's  remarks  on  banish- 
ment, prison,  and  corporal  chastisement;  also  what  he  says  of  the  ali- 
ments and  pension  to  be  given  to  a  priest  who  has  by  the  sentence  been 
deprived  of  his  benefice  and  his  income.  The  matter  has  not  yet  been 
settled  by  a  general  law  in  this  country.  Cfr.,  however,  C.  Pi.  B. 
III.,  n.  72,  and  the  answer  of  the  S.  C.  de  Prop.  Fide,  4  Febr.  1873  ad 
1"  {ibid.  p.  210).  By  what  means  and  in  what  manner  bishops  may  be 
able  to  effect  the  execution  of  their  sentences  even  where  the  secular  arm 
is  not  at  their  disposal,  is  stated  by  Boiiix,  il.  244;  Rota,  n.  760.  On 
pecuniary  punishments  and  fines  cfr.  I.ucidi,  I.,  c.  2,  n.  206  ff. 

*  c.  5,  X.,  n.  14;  c.  7,  X.,  V.  37.  This  principle  covers  the  rule  that 
whoever  is  condemned  in  contumacy  must  bear  the  costs.  Reiffenstucl, 
h.  t.,  n.  200.  —  Conimentators  generally  treat  of  the  costs  in  1.  II.  tit.  27,  de 
sententia.  See  also  Bouix,  il.  242;  Pierantonelli,  tit.  v.  n.  31;  Smith, 
n.  n.  1201. 

*  II  June  1833;   5  Sept.  1835.     AJP.,  xx.  465,  468. 


Executio7t  and  Costs,  195 

costs.'  The  accused  pays  the  witnesses  for  the  defence 
and  his  counsel's  fees,  while  the  fisc  pays  witnesses  for  the 
prosecution  and  other  current  expenses  of  the  procedure 
proper.  The  officers  of  the  court  must  await  the  issue 
before  receiving  fees.  If  defendant  is  acquitted  he  can 
recover  the  amount  of  his  salary  that  was,  perhaps, 
stopped  during  the  trial ; '  in  general  he  may  recover  for 
any  damages.*  The  accused  ecclesiastic  has  the  right  of 
defence  if  prosecuted,  but  if  too  poor  to  pay  himself,  his 
counsel's  fees  must  be  paid  by  the  fisc,  whether  counsel 
was  appointed  ex  officio  or  chosen  by  defendant.  The 
same  holds  in  case  of  a  poor  appellant  or  appellee.* 

Beside  these  regular  costs  there  are  others '  which  must 
be  borne  without  recovery  by  the  party  that  occasioned 
them.  They  are  those  which  are  caused  by  chicanery  or 
carelessness;  e.g.  when  the  accused  unnecessarily  delays  or 
hinders  the  proceedings:  when  at  his  request  unnecessary 
and  irrelevant  witnesses  are  called ;  or  when  he  employs 
more  counsel  than  he  needs,  etc.  For  copies  of  the  acts 
defendant  will  have  to  pay  himself,  because  he  as  well  as 
his  counsel  may  inspect  the  originals  in  the  chancery.' 

The  costs  of  an  appeal  lost  are  borne  by  the  appellant ; 
if  both  parties  appealed,  costs  ought  to  be  divided  in  pro- 
portion. Poor  ecclesiastics  appeal  free  of  costs.'  Where  a 
criminal  conviction  leads  to  a  removal  in  punishment,  the 
ecclesiastic  so  removed  cannot  be  condemned  for  costs.* 

'  With  the  right  to  recover  if  acquitted  or  successful. 

*  13  June  1826.     AJP.,  xin.  53.  *  8  Mch.  1748.     AJP..  xi.  1124. 

*  15  June  1854.     AJP.,  XX.  160. 

*  Canonists  usually  distinguish  between  necessary  {Ugitimae,  judiciaUs) 
and  optional  {voluntariae,  delicatae)  expenses.  The  former  comprise 
expenses  entailed  in  the  procedure  as  such,  e.g.  the  auditor's,  prosecutor's, 
clerk's,  messenger's  fees,  indemnity  of  witnesses  for  travel,  board,  and 
loss  of  wages,  fees  for  certified  copies  of  documents,  etc. 

*  I  Sept.  1778.     AJP.,  XX.  76.  '•  Aug.  1721.     AJP..  xi.  512. 

*  April  1718.     AJP.,  XI.  49a,  156.     We  suspect  that  this  decree  rcfert 


196  The  Practice. 

Sometimes  those  who  accuse  or  denounce  others,  to 
have  them  criminally  prosecuted,  may  be  forced  to  give 
security  first,  and  in  case  the  accused  be  acquitted,  to  pay 
costs.' 

The  fees,  fines,  and  other  costs  are  not  the  same  in  all 
courts,  especially  in  the  lower  ones.  The  old  customary 
rates  are  still  used.^  If  the  bishop  wishes  to  establish  a 
new  rate,  which  may  be  quite  necessary  on  account  of  the 
general  decrease  of  value  in  money,  he  ought  as  a  rule  to 
do  it  in  synod,  as  Benedict  XIII.  decreed  in  1725.'  The 
rate  thus  established  must  then  be  approved  in  the  pro- 
vincial council,  and  lastly  by  Rome.  For  good  reasons 
the  bishop  may  submit  the  new  rate  to  Rome  at  once.* 

In  the  Roman  Congregations  the  judges  draw  no  fees. 
The  cost  of  appeal  there  consists  mainly  in  expenses  for 
postage,  printing,  and  commissions,  and  in  attorney's 
fees.' 

117*.  We  do  not  know  whether  a  regular  rate  of  the 
necessary  judicial  fees  and  costs  (also  for  the  defensor 
matrimonii)  has  been  fixed  in  any  diocese  or  province  of 
our  States  since  the  last  plenary  Council.  Although  this 
canonical  "  tariff-question"  does  not  demand  immediate 
legislation,  it  may  deserve  attention  by  and  by.  Such  a 
court  tariff,  we  suppose,  would  come  under  decree  294 
C.  PI.  B.  III. 

While  the  L  Or  dinar  io  is  absolutely  silent  on  the  ques- 
tion of  costs,  the  Cum  Magnopcre,  art.  44,  reminds  ap- 
pellate courts  not  too  easily  to  condemn  the  lower  curia 

to  some  particular  case  and  does  not  warrant  the  general  statement  by 
the  author. 

'  March  1722.     AJP.,  xi.  592.     13  Sept.  1817.     AJP.,  xx.  453. 

*  15  Jan.  1740.     AJP.,  XI.  1085. 

^  Pius  VII.,  by  an  order  of  May  1st,  1823,  instituted  a  committee  of 
three  cardinals  to  revise  the  former  tariff  of  judicial  fees  and  taxes  in 
accordance  with  the  conditions  of  that  time.     AJP.,  xii.  999,  831. 

*  AJP.,  XI.  412.  "  AJP.,  I.  2423. 


Execution  and  Costs.  197 

in  costs,  as  no  bishop  is  supposed  to  begin  judicial  pro- 
ceedings except  the  preHminary  inquest  have  furnished 
good  reasons  for  doing  so.  Only  if  the  bishop  should  put 
a  cleric  on  a  criminal  trial  ex  vera  et  propria  caliimnia,  i.e. 
rashly  or  upon  a  mere  suspicion,  could  he  be  condemned 
for  costs.* 

'  See  Commentators  in  1.  v.  tit.  2,  de  calumniatoribus.  Calumniam  et 
attdaciam  temere  litigantium  condemnando  in  expensis,  etc.  c.  4,  X  ,  V.  37. 
Such  rash  procedure  is  called  calumnia  because  it  is  a  false  accusation 
rashly  and  therefore  maliciously  made.  Some  interesting  questions 
concerning  costs  in  case  of  male  judicantis  or  temere  litigantis  are  found 
in  Schmalzgruder,  h.  t.,  n.  Iiosqq. 


APPENDIX. 


INSTRUCTIO   1880. 

Islfuzione  Instruction 

Alle  Curie  Ecclesiastiche   sulle  For  Ecclesiastical  Tribunals  on 

forme  di procediviento  econo-  the  Forms  of  Summary  Pro- 

mico  nelle  cause  disciplinari  e  cedure  in   Disciplifiary   and 

criminali  dei  Chierici.    .  Criminal  Causes  of  Clerics. 

Questa  S.  Congregazione  This  Sacred  Congregation 

dei  VV.  e  RR.  maturamente  of    Bishops    and    Regulars, 

considerando      la     presente  after    maturely   considering 

condizione      della      Chiesa,  the  present  condition  of  the 

quasi  da  per  tutto  impediia  Church,  which    is    impeded 

di     spiegare    I'esterna     sua  on   every  hand    from  bring- 

azione  sulle  materie   e  per-  ing   her  external    action    to 

sone   ecclesiastiche,  e  rifiet-  bear  on  persons  and  things 

tendo  anche   al    difetto   dei  ecclesiastical,     and      taking 

mezzi      atti      all'organizza-  also  into  account  the  lack  of 

mento  regolare   delle  Curie,  proper  facilities  to  organize 

h   venuta    nella    determina-  regular  ecclesiastical  courts, 

zione  di  autorizzare  espres-  has  come   to  the  conclusion 

samente  gli  Ordinarii  a  far  expressly  to  authorize  bish- 

uso  delle   forme  piu  econo-  ops  to  proceed    in    a   some- 

miche    nell*    esercizio    della  what   summary    manner    in 

loro   disciplinare  giurisdizi-  the  exercise  of  their  discipli- 

one  sui  Chierici.    Et  affinche  nary  jurisdiction  on  clerics 

resti  salvaogni  ragione  della  subject  to  their  jurisdiction, 

giustizia,   e  si   mantenga  la  But  in  order  that  substantial 

canonica  regolaritd  ed    uni-  justice  may  be  secured  and 

formit^  dei  procedimenti,re-  canonical      regularity     and 


APPENDIX. 


INSTRUCTIO  1880. 


Instructio 

Pro  Ecclesiasticis  Curtis  quoad 
modum  procedendi  oeconoviice 
in  causis  disciplinaribus  et 
criminalibus  clericorum. 


Sacra  haec  EE.  et  RR. 
Congregatio,  mature  prae- 
senti  Ecclesiae  conditione 
perpensa,  quae  pene  ubique 
impeditur,  quominus  exter- 
nam  explicet  suam  actionem 
super  materias  et  personas 
ecclesiasticas,  et  considerate 
quoque  defectu  mediorum 
aptorum  pro  regulari  curia- 
rum  ordinatione  constituit 
facultatem  Ordinariis  loco- 
rum  expresse  concedere,  ut 
formas  magis  oeconomicas 
adhibere  valeant  in  exer- 
citiosuae  disciplinaris  iuris- 
dictionis  super  clericis.  Ut 
autem  tota  iustitiae  ratio 
sarta  tectaque  maneat,  ser- 
veturque  processuum  canon- 


Instmictlo  S,  C*  de  Prop* 
Fide. 

De  modo  servando  in  cogno- 
scendis  et  definiendis  causis 
criminalibus  et  disciplinari- 
bus Clericorum  in  Foederatis 
Statibus  Americae  Septentri- 
onalis. 

CUM  MAGNOPERE 
hujus  S.  Consilii  intersit  in 
ecclesiasticis  judiciis  earn  me- 
thodum  servari  quae  et  tempo- 
rum  circumstantiis  opportune 
respondeat,  et  regulari  justitiae 
administrationi  nee  non  Prae- 
latorum  auctoriiati  tuendae 
querelisque  reorum  praecaven- 
dis  par  omnino  sit,  placuit 
iterum  ad  examen  rti'ocari  ea 
omnia  quae  in  hac  re  pro  ecclf- 
siis  Foederatorum  Americae 
Septentrionalis  Statuum  in  In- 
structione  diei  26  Julii  atini 
1878,  fiec  non  in  responsione 
ad  dubia  circa  eamdem  pos- 
terius  proposita  continebantur. 
Itaquc  S.  C.  omnibus  mature 
perpensis,  SSmo.  D.  N.  Leont 


200 


Appendix. 


puta  opportune  di  emanare 
le  seguenti  norme  a  cui  le 
Curie  devono  attenersi. 


I.  L'ORDINARIO  ha 
I'obbligo  pastorale  di  curare 
la  disciplina  e  correzionedei 
Chierici  da  se  dipendenti, 
vigilando  sulla  loro  con- 
dotta,  ed  usando  i  rimedi 
canonici  per  antivenire,  ed 
eliminare  disordini  fra  i 
medesimi. 

II.  Quest!  rimedi  altri  sono 
preventivi  ed  altri  repressivi  e 
medicinali.  I  primi  sono 
diretti  ad  impedire  che  il 
male  avvenga,  a  rimuovere 
gl'incentivi  di  scandalo,  le 
occasioni  volontarie,  e  le 
cause  prossime  a  delinquere. 
I  secondi  hanno  per  iscopo 
richiamare  i  colpevoli  a  buon 
sen  no,  e  riparare  le  conse- 
guenze  del  loro  reato. 

III.  Sta  alia  coscienziosa 
discrezione  dell'Ordinario 
I'applicar  questi  rimedi  a 
tenore  delle  prescrizioni 
canoniche  secondo  la  gravitjl 
dei  casi  e  delle  circostanze. 

IV.  Tra  le  misure  preser- 
vative si  annoverano  princi- 


uniformity  maintained  in  all 
trials,  it  is  at  the  same  time 
deemed  opportune  to  pub- 
lish the  following  method  of 
procedure  as  obligatory  on 
all  ecclesiastical  courts. 

I.  It  belongs  to  the  pas- 
toral duty  of  the  Ordinary 
to  look  after  the  discipline 
and  correction  of  his  clergy, 
to  watch  over  their  conduct 
and  by  canonical  means  to 
endeavor  to  prevent  or 
eliminate  abuses  among 
them. 

II.  Of  these  means  some 
Sivc preventive,  some  repressive 
and  corrective.  The  form- 
er are  intended  to  prevent 
the  occurrence  of  evils,  to 
forestall  scandal,  remove 
voluntary  occasions  and  all 
proximate  cause  of  delin- 
quency. The  latter  are  in- 
tended to  bring  back  the 
erring  to  a  sense  of  duty  and 
to  repair  the  evil  effects  of 
their  misdeeds. 

III.  It  is  left  to  the  con- 
scientious discretion  of  the 
Ordinary  to  apply  these 
remedies  conformably  with 
canonical  rules  according  to 
the  gravity  of  the  cases  and 
their  circumstances. 

IV.  Among  the  preserva- 
tive   measures    are    chiefly 


Appendix. 


20I 


ica  regularitas  et  uniform- 
itas,  opportunum  censuit 
sequentes  emanare  normas 
a  curiis  servandas. 


;.  I.    Ordinario        pastorale 

onus  incumbit  disciplinatn 
correctionemque  clericorura 

'  a  se  depondeiitium  curandi 
super  eorumdem  vitae  ra- 
tionem  vigilando,  remediis- 
que  utendo  canonicis  ad 
praecavendas  apiid  eosdem 
et  eliminandas  ordinis  per- 
turbationes. 

II.  Ex  his  remediis  alia 
praeveniunt,  alia  reprimunt 
et  medelam  afferunt.  Priora 
ad  hoc  diriguntur,  ut  im- 
pediant,  quominus  malum 
adveniat,  ut  scandali  stimuli, 
occasiones  voluntariae,  cau- 
saeque  ad  delinquendum 
proximae  removeantur.  Al- 
tera finem  habent  revocandi 
delinquentes,  ut  sapiant  re- 
parentque  admissi  criminis 
consequentias. 
L  III.  Conscieniiae  et  pru- 
*  deniiae  Ordinarii  horum 
remediorum  iucumbitappli- 
catio  iuxta  canonum  prae- 
scriptiones  et  casuum  ad- 
iunctorumque  gravitatem. 
IV.  Mediis,  quae  praeser- 


PP.  XIII.  approbante^  haec 
quae  sequuntur  observanda 
decrei'it,  praecedenti  Instruc- 
tione  ac  successiva  dedaratione 
abrogata,  its  exceptis  quae  in 
hac  continentur. 

I.  Ordinarius  pro  suo  pas- 
torali  munere  tenetur  dis- 
ciplinam  correptionemque 
clericorum  itadiligenter  cu- 
rare, ut  circa  eorum  mores 
assidue  vigilet,  ac  remedia 
a  canonibus  statuta  sive 
praecavendis  sive  toUendis 
abusibus  in  clerum  ali- 
quando  irrepentibus  provide 
adhibeat. 

II.  Haec  vero  remedia  alia 
praeventiva  sunt,  alia  repres- 
siva.  Ilia  quidem  ad  prae- 
pedienda  mala,  scandalorum 
stimulos  amovendos,  volun- 
tarias  occasiones  et  causas 
ad  delinquendum  proximas 
vitandas  ordinantur.  Haec 
veroeum  in  finem  constituta 
sunt,  ut  delinquentes  ad  bo- 
nam  frugem  revocentur,  ac 
culparum  consectaria  e  me- 
dio tollantur. 

III.  Conscientiae  Ordinarii 
remittitur  cujusque  remedii 
applicatio  canonicis  prae- 
scriptionibus  servatis  pro 
casuum  ac  circumstantiarum 
gravitate. 

IV.  Praeventiva     remedia 


202 


Appendix. 


palmente  il  ritiro  spirituale, 
le  ammonizioni,  e  i  precetti. 

V.  A  tali  provvedimenti 
deve  precedere  una  verifica- 
zione  sommaria  del  fatto; 
della  quale  e  d'uopo  die 
rOrdinario  tenga  nota  per 
poter  procedere,  se  occorra, 
ad  ulteriora,  ed  anche  per 
darne  conto  ali'Autoritd 
superiore  in  caso  di  legit- 
timo  ricorso. 

VI.  Le  canoniche  ammoni- 
zioni si  applicano  o  in  forma 
paterna  e  segreta  (anche  per 
lettera  o  per  interposta  per- 
sona), ovvero  in  forma  legale, 
facendone  pero  sempre  ri- 
sultare  da  qualche  atto  la 
esecuzione. 

VII.  Riuscendo  le  ammoni- 
zioni infruttuose,  I'Ordinario 
prescrive  alia  Curia  che  sia 
ingiunto  al  delinquente  ana- 
logo  precetto,  spiegando  in 
esso  quello  che  il  precettato 
debba  fare  o  non  fare,  colla 
comminatoria  della  corri- 
spondente  pena  ecclesias- 
tica,  nella  quale  incorrerd  in 
caso  dicontravvenzione. 

VIII.  II  precetto  viene  inti- 
mato  al  prevenuto  dal  Can- 
celliere  innanzi  il  Vicario 
generale;    oppure  alia   pre- 


to  be  reckoned  the  spiritual  „ 
retreat,  admonitions  and  in-  9 
junctions. 

v.  These  measures  should 
be  preceded  by  a  summary 
cognizance  of  the  case;  and 
of  this  tlie  Ordinary  shall  re- 
tain a  proper  minute,  so  as 
to  be  able  to  proceed  ad 
ulteriora  if  needs  be,  and  to 
furnish  proper  information 
to  superior  authority  in  case 
of  legitimate  recourse. 

VI.  The  canonical  admoni-  <| 
tions  may  be  made  in  a  ^ 
paternal  and  private  manner 
(even  by  letter  or  by  an  in- 
termediary person),  or  in 
legal  form,  but  always  in 
such  a  way  that  proof  of 
their  having  been  made 
shall  remain  on  record, 

VII.  Finding   admonitions   - 
fruitless,  the  Ordinary  com- 
mands the    officials   of    his  '■, 
court  to  enjoin  a  similar  pre-    ^ 
cept     on      the     delinquent, 
specifying  what  he  is  to  do 
or  not  to  do,  and  stating  the 
corresponding  ecclesiastical 
penalties  which  he  will  incur 
by  disobedience. 

VIII.  These  injunctions  are 
communicated  to  the  ac- 
cused by  the  chancellor  in 
presence    of   the   vicar-gen- 


Appendix. 


203 


vant,  praecipue  accensentur 
spiritualia  exercitia,  moni- 
tiones  et  praecepta. 

V.  Has  provisiones  prae- 
cedere  debet  summaria  facti 
cognitio,  quae  ab  ordinario 
notanda  est,  ut  ad  ulteriora 
procedere,  qiiatenus  opus 
sit,  et  certiorem  reddere 
queat  superiorem  auctori- 
tatem  in  casu  legitimi  re- 
cursus. 


VI.  Canonicae  moniticnes 
fiunt  sive  in  forma  paterna 
et  secreta  (etiam  per  epis- 
tolam  aut  per  interpositam 
personam)  sive  in  forma 
legali,  ita  tamen  ut  de 
earumdem  executione  con- 
stat ex  aliquo  actu. 

VII.  Quatenus  infructuo- 
sae  monitiones  evadant,  Or- 
dinarius  praecipit  curiae,  ut 
delinquent!  analogum  iniun- 
gatur  praeceptum,  in  quo 
declaretur,  quid  eidem  agen- 
dum aut  omittendum  sit, 
cum  respondentis  poenae 
ecclesiasticae  comminatione, 
quam  incurret  in  casu  trans- 
gression is. 

VIII  Praeceptum  intima- 
tur  praevento  a  cancellario 
coram  vicario  generali;  sive 


sunt  praecipue  spiritualia 
exercitia,  monitiones,  prae- 
cepta. 

V.  Antequam  vero  ea  ad- 
hibeantur,  summaria  fac- 
torum  recognitio  praecedat 
oportet:  cujus  notitiam  Or- 
dinarius  servari  curat  ut,  si 
opus  sit,  ad  ulteriora  proce- 
dere possit,  et  ut  auctori- 
tati  ecclesiasticae  superioris 
gradus  in  casu  legitimi  re- 
cursus  totius  rei  rationem 
reddat. 

VI.  Canonicaa  monitiones 
vel  secreto  fiunt  (etiam  per 
epistolam  vel  per  interposi- 
tam personam)  ad  modum 
paternae  correptionis,  val 
servata  forma  legali  adhi- 
bentur,  ita  tamen  ut  illarum 
executio  ex  aliquo  actu  pa- 
teat. 

VII.  Quod  si  monitiones  in 
irritum  cedant,  Ordinarius 
jubet,  per  curiam  delin- 
quenti  analogum  praecep- 
tum intimari  ita,  ut  in  hoc 
axplicetur  quid  ipse  vel  fa- 
cere  vel  vitare  debeat,  add  ita 
respeciivae  poenae  ecclesia- 
sticae comminatione  quam 
si  praeceptum  transgredia- 
tur,  incurret. 

VIII.  Praeceptum  delin- 
quetiti  a  curiae  cancellario 
coram  vicario  generali  injun- 


204 


Appendix. 


senza  di  due  testitnoni  ec- 
clesiastici,  o  laici  di  provata 
probit^. 

§  I.  L'atto  si  firma  dalle 
parti  die  sono  presenti,  ed 
anche  dal  precettato,  se 
vuole. 

§  2.  II  Vicario  generale 
pud  imporre  ai  testimoni  il 
giuramento  di  conservare  il 
segreto,  se  la  natura  del  ti- 
tolo,  di  cui  trattasi,  pru- 
dentemente  lo  richieda. 

IX.  In  quanto  poi  alle 
misure  penali,  avvertano  i 
reverendissimi  Ordinari,  clie 
con  la  presente  istruzione 
non  s'intendono  derogate  le 
solennit^  dei  giudizi  volute 
dai  sacri  Canoni,  Costituzi- 
oni  Apostoliche  ed  altre 
ecclesiastiche  disposizioni, 
ove  queste  possano  libera- 
mente  ed  efficacemente  ap- 
plicarsi;  ma  le  forme  econo- 
miche  mirano  a  provvedere 
per  quei  casi  e  per  quelle 
Curie,  in  cui  non  si  possa  o 
non  si  creda  espediente  at- 
tuare  i  solenni  procedimenti. 
Rimane  pure  nel  suo  pieno 
vigore  il  rimedio  stragiudi- 
ziale  ex  informata  conscientia 
pei  reati  occulti,  decretato 
dal  s.  Concilio  di  Trento  nel 
cap.  I.    sess.   14.  de  Reform. 


eral;  or  in  presence  of  two 
witnesses,  ecclesiastics  or 
laymen  of  approved  integ- 
rity. 

§  I.  The  act  will  be  signed 
by  those  present  and  by  the 
accused  likewise,  if  he  will. 

§  2.  The  vicar-general  can 
bind  the  witnesses  under 
oath  to  observe  secrecy  if  the 
nature  of  the  case  be  such  as 
to  require  it  in  prudence. 

IX.  As  to  the  penal  meas- 
ures the  Rt.  Rev.  Ordinaries 
will  observe  that  it  is  not  in- 
tended by  this  Instruction  to 
derogate  from  the  solemnity 
of  judicial  proceedings  as 
required  by  tlie  sacred 
canons,  apostolical  constitu- 
tions, and  other  ecclesiasti- 
cal regulations,  whenever 
that  can  be  freely  and  fully 
carried  out;  this  summary 
form  is  only  granted  to  pro- 
vide for  those  cases  and 
those  courts  in  which  it 
would  be  either  impossible 
or  inexpedient  to  have  re- 
course to  tiie  more  solemn 
proceedings.  In  its  full 
vigor  then  will  remain  the 
extrajudicial  remedy  ex  in- 
formata conscientia  for  occult 
crimes,  as   decreed    by    the 


Appendix, 


205 


coram  duobus  testibuseccle- 
siasticis  aut  laicis  probatae 
integri  talis. 

§  I.  Actus  subsignatur  a 
partibus  praesentibus  et  a 
praevento  quoque,  si  ve- 
lit. 

§  2.  Vicarius  generalis 
adiicere  valet  iuramentum 
servandi  secretum,  quatenus 
id  prudenter  expetat  tiiuli 
indoles,  de  quo  agitur. 

IX.  Quoad  poenalia  media, 
animadvertant  reverendis 
simi  Ordinarii,  praesenti  in- 
struciione  baud  derogatuui 
esse  iudiciorum  solemnitati- 
bus  per  sacros  canones,  per 
apostolicas  constituiiones  et 
alias  ecclesiasticas  disposi- 
tiones  imperatis,  quatenus 
eaedem  libere  efficaciterque 
applicari  queant;  sedoecono- 
micae  formae  consiilere  in- 
tendunt  illis  casibus  curiis- 
que,  in  quibus  solemnes  pro* 
cessus,  aut  adhiberi  neque- 
ant,  aut  non  expedire  vide- 
antur.  Plenam  quoque  vim 
servat  suam  extraiudiciale 
remedium  exinformata  con- 
scientia  pro  criminibus  oc- 
cultis,  quod  decrevit  s. 
Tridentina  Synodus  in  Sess. 
14  cap.  1  de  Reform.,  adhi- 
bendum  cum  illis  regulis  et 


gitur,  aut  etiam  coram  duo- 
bus  testibus  ecclesiasticis 
vel  laicis  spectatae  probi- 
tatis. 

1°.  Actus  injunctionis 
praecepti  signatur  a  parti- 
bus praesentibus,  et  a  delin- 
quente  etiam,  si  velit. 

2°.  Vicarius  generalis  jus- 
jurandum  testibus  imponere 
potest  de  secreto  servando, 
si  prudenter  a  natura  rei,  de 
qua  agitur,  id  requiratur. 

IX.  Quod  vero  pertinet  ad 
remedia  repressiva  seu  poe- 
nas,  animadvertant  Ordinari 
in  suo  pleno  vigore  manere 
remedium  extrajudiciale  ex 
informata  conscientia  pro 
occultis  reatibus  a  S.  Con- 
cilio  Tridentino  constitutum 
Sess.  XIV.,  cap  i  de  Reform. 


2o6 


Appendix. 


da  addottarsi  con  quelle  re- 
gole  e  riserve,  che  ha  cos- 
tantemente  osservate  nella 
interpretazione  di  detto  capo 
la  s.  Congregazionedel  Con- 
cilio  in  piu  risoluzioni,  e  in 
specie  nella  Bosnien.  e  Sir- 
mien,  20  decembre  1873. 


X.  Dovendosi  agire  crimi- 
nalmente  o  per  contravven- 
zione  a  precetto,  o  per  reati 
comuni,  o  per  trasgressioni 
alle  leggi  della  Chiesa,  pud 
essere  compilato  il  process© 
nelle  forme  sommariee  senza 
strepito  di  giudizio,  osser- 
vate sempre  le  regole  sostan- 
ziali  di  giustizia. 

XI.  II  processo  s'intra- 
prende  ex  officio,  o  in  seguito 
d'istanza,  di  querela,  e  di 
notizia  in  altro  niodo  per- 
venuta  in  Curia,  e  si  prose- 
gue  fino  al  termine  nello 
scopo  di  raggiungere  con 
ogni  cautela  e  riservatezza 
il  discoprimento  della  veritA, 
e  di  aver  cognizione  tanto  del 
delitto,  che  della  reita  od 
innocenza  dell'accusato. 


XII.  La  compilazione  del 
processo  pu6  commettersi 
ad  un  probo  ed  idoneo  Ec- 


Council  of  Trent,  Sess.  xiv. 
De  Reform,  c.  i.,  to  be  used 
subject  to  the  rules  and  re- 
strictions according  to  which 
that  chapter  was  always  in- 
terpreted by  the  S.  Congre- 
gation of  the  Council  in  re- 
peated decisions  and  es- 
pecially that  of  Bosnien.  et 
Sir  mien.,  Dec,  20,  1873. 

X.  When  criminal  pro- 
ceedings are  to  be  taken 
whether  for  violation  of  an 
injunction,  for  ordinary  de- 
linquencies, or  a  violation  of 
the  laws  of  the  Church,  the 
summary  form  without  the 
judicial  solemnities  can  be 
used,  but  always  observing 
the  essential  rules  of  justice. 

XI.  Proceedings  are  insti- 
tuted ex  officio  or  as  a  result 

of  an  accusation,  a  com-  j 
plaint,  or  of  knowledge  % 
reaching  the  diocesan  curia 
by  other  means ;  and  they 
are  followed  up  with  all  cau- 
tion and  prudence  for  the 
purpose  only  of  ascertaining 
the  truth,  and  that  the  cer- 
tainty of  the  crime  as  well 
as  the  culpability  or  inno- 
cence of  the  accused  may  be 
made  manifest. 

XII.  The  taking  of  the 
evidence  may  be  intrusted 
to  any  approved  and  com- 


Appendix. 


207 


reservationibus,  quas  con- 
stanter  servavit  pro  dicti 
capitis  interpretatione  s. 
Concilii  Congregatio  in  plu- 
ribus  resolutionibus  et  prac- 
cipuein  Bosnien.  et  Sirmien. 
20  Decembris  1873. 


X.  Qiunn  procedi  oporteat 
ci  iminaliter,  sive  infraction  is 
praecepti,  aut  criminum 
communium,  vel  legum  Ec- 
clesiae  violationis  causa  pro- 
cessus confici  potest  formis 
summariis  et  absque  iudicii 
strepitu,  servatis  semper 
iTCgulis  iuslitiae  substaatia- 
libiis. 

XI.  Processus  instruitur 
ex  officio  aut  in  sequelam 
supplicis  libeili  et  querelae, 
aut  notitiae  alio  modo  a 
curia  habitae,  et  ad  fin  em 
perdiicitnr  eo  consilio,  ut 
omni  studio atqueprudentia 
Veritas  detegatur,  et  cogniiio 
turn  criminis,  cum  reitatis 
aut  innocentiae  accusati  ex- 
urgat. 


X.  In  actione  criminali  vel 
ob  praecepti  inobservan- 
tiatn,  vel  ob  communes  re- 
atus,  vel  ob  ecclesiasticarum 
legum  transgressionem  pro- 
cessus summarie  et  sine 
strepitu  judicii  servatis  sem- 
per in  tota  sua  substantia 
justitiae  regulis  conficiatur. 

XI.  Processus  ex  officio  in- 
struitur, vel  accepto  sup- 
plici  libello,  vel  acciisatione, 
vel  nuncio  quoquomodo  ad 
curiam  perlato,  et  usque  ad 
lerminum  perducitur  eo  con- 
silio, ut  omni  studio  ac  pru- 
dentia  Veritas  detegatur,  ac 
turn  de  crimine  tum  de  rei- 
tate  vel  innocentia  accusati 
causa  eliquetur. 


XII.  Processus      confectio          xii.  Ubi   curiae  iam  con- 
pommitti  potest  alicui  probo      stitutae      sunt,      compilatio 

processus    committi    potest 


208 


Appendix. 


clesiastico,  assistito  dall'At- 
tuario. 


patent    ecclesiastic,  assisted 
by  a  clerk  (secretary). 


XIII.  Ogni  Curia  e  d'uopo 
che  abbia  il  suo  Procuratore 
fiscale  nell'interesse  della 
giustizia  e  della  legge, 

XIV.  Per  le  occorrenti  in- 
timazioni  o  notificazioni,  se 
non  pud  aversi  I'opera  dei 
cursori  della  Curia,  si  sup- 
plisce  con  farle  presentare 
da  persona  qualificata,  che 
ne  dia  discarico ;  ovvero 
trasmettendole  raccoman- 
date  per  la  Posta  nei  luoghi 
eve  e  in  uso  tale  sistema 
postale,  richiedendosene  cer- 


XiTi.  Eacli  episcopal  curia 
sliould  have  a  fiscal  procu- 
rator in  the  interest  of  law 
and  justice. 

XIV.  If  there  be  no  mes- 
sengers attached  to  the  curia 
whose  services  could  be  avail- 
able for  the  delivery  of  the 
summons  and  notifications, 
these  can  be  sent  by  any 
suitable  person,  who  must 
make  a  return  thereof  ;  or 
tliey  may  be  sent  by  regis- 
tered letter  where  such 
postal   system    exists,    thus 


I 


Appendix.  209 

atque   idoneo    ecclesiastico,      probo  ac  perito  viro  ecclesi- 
adstante  actuario.  astico,  cui  assistat  actuarius. 

In  dioecesibus  vero  in  quibits  curiae  episcopales  tiondum  possint 
inslitui,  interim  observanda  est  Instructio  anni  1878  cum  respon- 
sione  earn  subsequenti  ad proposita  dubia.  Videlicet  singuli  Artti- 
stites  in  synodo  dioecesana  audita  clericorum  consilio,  quod  tamen 
sequi  non  tenentur,  quinque,  vel  ubi  adjuncta  rerum  id  fieri  non 
sinant,  tres  saltern  presbyteros  ex  probaiissimis  et  quantum  fieri 
poterit  in  jure  canonico  peritis  seligant  ad  hujusmodi  officium,  ut 
in  praedicta  Instructione  declaratum  exstat,  cxercendum.  Quod 
si  oh  aliqua?n  gravem  causam  synodus  haberi  nequeat,  quinque  vel 
tres  ut  supra  ecclesiastici  viri  per  episcopum  ad  idem  munus  de- 
puteiitur.  Electi  in  officio  manebunt  usque  ad proximam  dioece- 
sanae  synodi  celebrationem,  in  qua  vel  confirmentur  vel  alii  eoruni 
loco  designentur.  Quod  si  interdum  morte  aut  renuntialione  vel 
alia  causa  praescriptus  consiliariorum  numerus  mi/iuatur,  Epis' 
copus  audita  consilio  cetcrorum  ad  commissionem  pertinentium 
alios  sufficiet.  Porro  commissia  haec  consultorum  jurejurando 
obstricta  tenetur  ad  officium  fideliier  adiviplendum,  et  praeside 
Episcopo  vel  vicario  generali  rem  suam  aget.  Defcnsio  autem 
rei  erit  in  scriptis  exhibenda  ad  nor  mam  praesentis  Instructionis. 

XIII.  Unicuique  curiae  xiii.  In  qualibet  curia 
opus  est  procuratore  fiscali  episcopali  procurator  fiscalis 
pro  iustitiae  et  legis  tutela.        constituetur,  ut  justitiae  et 

legi  satisfiat. 

XIV.  Quatenus  pro  intima-  xiv.  Pro  intimationibus 
tionibus  aut  notificationibus  vel  notificationibus,  si  appa- 
haud  praesto  sit  opera  ritores  curiae  desint,  utaiur 
apparitorum  curiae,  supple-  Episcopus  persona  aliqua 
tur  exhibitione  earumdem  qualificata  quae  eas  exhi- 
explenda  per  qualificatam  beat,  ac  de  hoc  ipsum  certi- 
personam,  quae  de  facto  orem  reddat :  vel  etiam  a 
certioret  ;  sive  eas  trans-  curia  per  publicostabellarios 
mittendo  ope  commenda-  commendatae  (quibus  locis 
tionis  penes  tabeliariorum  hoc  systema  vigeat)  trans- 
officium,  illis  in  locis  in  qui-  mittantur,  exquisita  fide  ex- 


2IO 


Appendix. 


tificato  di  presentazione,  di 
ricevimento,  o  rifiuto. 

XV.  Labasedelfattodelit- 
tuoso  puo  essere  stabilita 
dalla  esposizione  che  se  n'e 
avuta  in  processo  convali- 
data  o  da  informazioni  au- 
tentiche,  o  da  confession! 
stragiudiziali,  o  da  testimo- 
niali  deposizioni:  ed  in  quan- 
to  al  titolo  di  contravven- 
zione  al  precetto,  risulta 
dalla  riproduzione  del  de- 
creto  e  dell'atto  d'intima- 
zione  eseguiti  ne'  modi  es- 
pressi  agli  Art.  VII.  ed  VIII. 

XVI.  A  ritenere  poi  in 
specie  la  colpabilitjl  deH'im- 
putato  e  necessaiio  diaverne 
la  prova  legale,  die  deve 
contenere  tali  elementi  da 
dimostrare  la  verita,  o  alme- 
no  da  indurre  una  morale 
convinzione,  rimosso  ogni 
ragionevole  dubbio  in  con- 
tra rio. 

XVII.  Le  persone  che  con- 
venga  di  esaminare,  si  sen- 
tono  sempre  separatamente. 

XVIII.  I  testimoni  a  prova 
o  a  difesa,  quando  non  vi  si 
oppongano  legali  ostacoli, 
devono  essere  intesi  con 
giuiamento,  estendibile,  se 
occorra,  anche  all'obbligo 
del  segreto. 


securing  a  certificate  of  their 
presentation,  acceptance,  or 
refusal, 

XV.  The  basis  of  the 
criminal  fact  may  be  estab- 
lished by  the  disclosures 
made  during  tlie  trial  sup- 
ported by  authentic  infor- 
mations, extrajudicial  ad- 
missions, or  the  depositions 
of  witnesses ;  and  as  re- 
gards the  violation  of  in- 
junctions, this  is  proved  by 
simply  producing  the  writ  * 
and  the  record  of  its  having  [ 
been  served,  as  provided  in 
Arts.  VII.  and  viii. 

XVI.  Regarding  in  par- 
ticular the  conviction  of 
the  accused,  it  is  neces- 
sary to  have  legal  proof, 
which  ought  to  be  of  such  : 
a  nature  as  to  demonstrate  ■ 
the  truth,  or  at  least  induce 
such  a  moral  conviction  as 
to  leave  no  reasonable  doubt 
of  the  contrary. 

XVII.  The  witnesses 
whom  it  is  expedient  to  ex- 
amine, should  be  all  heard 
separately. 

XVIII.  Witnesses  for  the 
prosecution  or  for  the  de- 
fence, if  there  be  no  legal 
obstacle,  should  be  put  un- 
der oath,  and,  if  need  be, 
held  under  oath  also  to  s^- 
crecv. 


Appendix. 


211 


bus  hoc  invaluit  systema, 
exposcendo  fidem  exliibi- 
tionis,  receptionis  aut  re- 
pudii. 

XV.  Basis  facti  criminosi 
constitui  potest  per  exposi- 
tionem  in.  processu  habitam, 
authenticis  roboratam  infor- 
mationibus  aut  confessioni- 
bus  extraiudicialibus,  vel 
testium  depositionibus,  et 
quoad  titulum  transgres- 
sionis  praecepti  constat  per 
novam  exhibitionem  decreti 
et  actus  indictionis,  perfec- 
torum  niodis  enuntiatis  Art. 
vii  et  viiK 

XVI.  Ad  retinendam  in 
specie  culpabilitatem  accu- 
sati  opus  est  probatione  le- 
gali,  quae  talia  continere 
debet  elementa,  ut  veritatem 
evincat,  aut  saltern  inducat 
moralem  certitudinem,  re- 
moto  in  contrarium  quovis 
rationabili  dubio. 

XVII.  Personae,  quas  ex- 
aminare  expediat,  semper 
audiuntur  separatim. 

XVIII.  Testes  ad  proba- 
tionem,  aut  ad  defensionem, 
quoties  legalia  obstacula 
haud  obsistant,  sub  iura- 
mento  audiri  debent,  quod 
extendi  potest,  si  opus  sit, 
ad  obligationem  secreti. 


hibitionis  atque  acceptionis 
vel  repudii.  Intiinationes  et 
noiificationes  semper  in  scriptis 
absolute  fiant. 

XV.  Delicti  fundamentum 
erui  potest  ex  ipsa  exposi- 
tione  habita  in  processu, 
quae  authenticis  informa- 
tionibus  vel  confessione  ex- 
trajudiciali,  vel  testium  de- 
positionibus confirmetur  : 
transgressio  vero  praecepti 
ex  ipso  decreto  et  actu  inti- 
mationis  ad  normam  art. 
VII.  et  VIII.  factae  deducitur. 


XVI.  Ad  admittendam  ve- 
ro rei  culpabilitatem  neces- 
saria  est  probatio  legalis, 
quae  iis  momentis  constare 
debet,  quibus  Veritas  vere 
demonstrata  elucescat,  vel 
saltem  moralis  convictio  in- 
ducatur  quocumque  rationa- 
bili dubio  oppositi  remote. 

XVII.  Personae  quae  ex- 
amini  subiiciendae  sunt, 
separatim  audiuntur. 

XVIII.  Testes  ad  proba- 
tionem  sive  ad  defensionem, 
si  legalia  impedimenta  id 
non  prohibeant,  audiantur 
praestito  juramento  de  veri- 
tate  dicenda,  et  si  res  postu- 
let,  etiam  de  secrete  ser- 
vando. 


212 


Appendix. 


XIX,  I  testimoni  trovan- 
dosi  lontani  o  in  altra  Dio- 
cesi,  se  ne  domanda  I'esame 
in  sussidioall'Autoritdeccle- 
siastica  del  luogo  con  invio 
alia  medesima  di  un  pros- 
petto  del  fatto:  e  TAutoritd 
requisita  corrisponde  alia 
richiesta  osservando  le 
norme  della  presente  Istru- 
zione. 

XX.  Qualora  vengano  in- 
dicati  testimoni  per  falti  e 
circostanze  essenzialmente 
interessanti  al  merito  della 
Causa,  e  non  possano  aversi 
in  esame,  perch^  non  si 
reputi  conveniente  d'inti- 
inarli,  ovvero  percheinvitati 
vi  si  ricusino,  se  ne  fa  men- 
zione  in  atti,  et  si  procura  di 
supplire  alia  deficienza  di 
essi  con  le  attestazioni  di  al- 
tri  testimoni  die  de  relato,  o 
in  altro  modo,  siano  infor- 
mati  di  quanto  si  ricerca. 


XXI.  Riunito  tutto  ci6  che 
sia  necessario  a  stabilire  il 
fatto  et  la  responsabilitd 
deH'imputato,  viene  questo 
intimato  aU'esame. 


XIX.  Witnesses  at  a  dis- 
tance or  in  another  diocese 
shall  be  examined  through 
the  intervention  of  the  local 
ecclesiastical  authority,  to 
whom  shall  be  transmitted 
an  abstract  of  the  case ; 
and  the  authority  called 
upon,  shall  comply  with 
the  request,  observing  the 
norms  of  the  present  In- 
struction, 

XX.  When  witnesses  are 
offered  to  give  testimony  on 
facts  or  circumstances  that 
are  very  material  to  the 
merits  of  the  case,  but  who 
cannot  be  examined  either 
because  it  is  not  deemed  ex- 
pedient to  summon  them,  or 
because  they  refuse  to  ap- 
pear though  summoned, 
mention  of  such  is  to  be 
made  in  the  minutes  of  the 
proceedings,  and  care  must 
be  taken  to  supply  for  their 
absence  by  the  depositions 
of  other  witnesses  who,  by 
hearsay  or  in  some  other 
manner,  have  come  by  the 
knowledge  sought. 

XXI.  When  all  has  been 
collected  that  is  necessary 
to  establish  the  fact  of  the 
crime  and  the  culpability  of 
the  accused,  the  latter  is 
cited  for  examination. 


Appendix, 


213 


Itaque  antequam  testificentur  cum  de  veritate  turn  de  secreto 
jurent.  Eo  7nagis  de  officio  fideliter  adimplendo  et  de  secreto,  pro 
ret  de  qua  agitur  exigeniia,  servando  omnes  juramento  obstricti 
sint  oportet^  qui  in  instructione  processus  ex  suo  munere  partem 
aliquam  habeaut. 


XIX.  Testium  absentiutn 
aut  in  alienadioecesi  moran- 
tium  exposcitur  examen  in 
subsidium  ab  ecclesiastica 
loci  auctoritate,  eidem  trans- 
mittendo  prospectum  facti; 
et  auctoritas  requisita  peti- 
tioni  respondet,  servando 
praesentis  instructionis  nor- 
mas. 

XX.  Quoties       indicentur 


XIX.  Testes  qui  in  locis 
longe  dissitis  vel  in  aliena 
dioecesi  degunt,  mediante 
auctoritate  ecclesiastica  loci 
in  quo  manent  examinentur, 
in  quern  finem  specimen  fac- 
torum  transmittetur:  quae 
quidem  auctoritas  in  respon- 
sione  normas  in  hac  Instruc- 
tione contentas  observabit. 

XX.  Si    indicentur    testes 


testes  ob  facta  aut  adiuncta  qui  de  factis  vel  circumstan- 

essentialiter    ulilia     merito  tiis  ad  meritum  causae  sub- 

causae,  qui  examini    subiici  stantiale  spectantibus  inter- 

nequeant,  eo  quod  censeatur  rogandi  essent,  nee   exami- 

haud  convenire  ut  vocentur,  nari    possint,   vel   quia   non 

aut    quia    vocati     abnuant,  licet  aut  decet  eos  citare  in 

mentio  eorumdem  fit  in  acti-  judicium,    vel    quia    rogati 

bus,    et     curatur     supplere  adesse  recusent,  necesse  est 

eorum   defectui   per  deposi-  id    in    aclis    commemorare, 


tiones  aliorum  testium,  qui 
de  relato  aut  alia  ratione 
noverint  id  quod  exquiritur. 


XXI.  Quum  collectum  fue- 
rit  quidquid  opus  sit  ad 
factum  et  accusati  responsa- 
bilitatem  constituendam, 
vocatur  iste  ad  examen. 


eorumque  deficientia  sup- 
pletur  testimoniis  aliorum 
qui  vel  de  relato  vel  aliter 
rem  de  qua  quaeritur,  no* 
verint. 

XXI.  Ubi  id  omne  quod  ad 
vetitatem  factorum  con- 
stituendam et  culpam  ac- 
cusati probandam  pertinet 
absolutum  fuerit,  imputatus 
intimatione  scripta  ad  examen 
vocatur. 


214 


Appendix. 


XXII.  Nella  intimazione, 
se  la  prudenza  non  lo  vieti, 
gli  si  espongono  per  esteso 
le  accuse  portate  a  suo  cari- 
co,  onde  possa  prepararsi  a 
rispondervi. 

XXIII.  Quando  poi  per  la 
quality  delle  accuse,  o  per 
altrecircostanze  non  sia  pru- 
denziale  di  esprimerle  nella 
intimazione,  in  questa  gli  si 
accenna  soltanto  clie  e  chia- 
mato  aU'esame  per  discol- 
parsi  in  una  causa  die  lo 
riguarda  come  inquisito. 

XXIV.  Rifiutando  egli  di 
presentarsi,  si  rinnova  la  in- 
timazione, nella  quale  gli  si 
prefigge  un  congruo  termine 
perentorio  acompariie,  egli 
si  notifica,  che  rendendosi 
ancora  disubbidiente,  si  avra 
come  contumace  :  e  per  tale 
sard  effettivamente  tenuto, 
posto  che  senza  dar  prova  di 
legittimo  impedimento,  tras- 
gredisse  pur  questa  intima- 
zione. 

XXV.  Presentandosi,  si 
sente  in  esame  :  e  se  fa  in- 
duzioni  valutabili,  devono 
queste,  per  quanto  si  puo, 
essere  esaurite. 

XXVI.  Si  procede  indi  alia 
contestazione  del  fatto  delit- 
tuoso,  e  delle  risultanze  che 


XXII.  In  this  citation,  un- 
less prudence  counsel  other- 
wise, the  accusations  made 
against  him  are  stated  in  de- 
tail, that  the  accused  may 
have  an  opportunity  to  pre- 
pare his  reply  to  the  charges. 

xxiii.  When,  on  account 
of  their  nature  or  other  rea- 
sons, it  is  not  prudent  to  de- 
tail the  charges  in  the  cita- 
tion, the  accused  is  simply 
called  on  to  exculpate  him- 
self in  a  case  that  concerns 
him  as  defendant. 

XXIV.  If  he  refuse  to  ap- 
pear tlie  citation  is  repeated, 
but  this  time  peremptorily 
fixing  a  suitable  term  within 
which  he  must  present  him- 
self. He  must  be  notified 
that  if  disobedient  to  this 
summons  he  shall  be  held  as 
contumacious,  and  shall  in 
fact  be  so  treated,  if  without 
proof  of  lawful  impediment 
he  disregard  this  citation. 

XXV.  On  presenting  him- 
self he  is  examined,  and  if 
he  adduce  arguments  of  any 
weight  they  are  to  be  sifted 
as  carefully  as  possible. 

XXVI.  Next  they  proceed 
to  contest  the  delict  and  the 
conclusions  already  arrived 


Appendix. 


215 


XXII.  In  iiidictione,  nisi 
prudentia  id  vetet,  exponun- 
tur  ei  per  extensum  accusa- 
tionesadversuseum  collatae, 
ut  parari  valeat  ad  respon- 
dendum. 

xxTii.  Quando  autem  ob 
accusatioiium  qualitates,  aut 
ob  alia  adiuncta  prudens 
non  sit  in  actu  intimationis 
eas  patefacere,  in  hac  solum 
innuitur  eundem  ad  examen 
vocari  ut  sese  excuset  in 
causa,  quae  ipsum  respicit 
uti  accusatum. 

xxiv.  Si  iudiciostitereab- 
nuat,  iteratur  indictio,  in  qua 
eidem  praefigitur  congruum 
peremptorium  terminum, 
eique  significatur  quod  si 
adhuc  obedire  renuat,  habe- 
bitur  ceu  contumax;  et  pro 
tali  in  facto  aestimabitur, 
quatenus  absque  probato 
legitimo  impedimento,  istam 
quoque  posthaberet  intima- 
tionem. 


xxv.  Si  compareat,  audi- 
tur  in  examine;  et  quatenus 
inductiones  faciat  alicuius 
momenti,  debent  istae,  quan- 
tum fieri  potest,  exhauriri. 

xxvi.  Proceditur  inde  ad 
contestationem  facti  crimi- 
nosi,  et  conclusionem  habi- 


xxii.  In  intimatione,  nisi 
prudentia  obstet,  accusa- 
tiones  contra  reum  perlatae 
per  extensum  referuntur,  ut 
ad  responsionem  se  prae- 
parare  possit. 

xxiii.  Quod  si  ob  accusa- 
tionum  qualitatem  vel  alia 
de  causa  baud  expediat  ut 
in  intimatione  exprimantur, 
in  hac  satis  erit  innuere 
ipsum  ad  examen  vocari  ut 
in  causa,  de  qua  contra  eum 
fit  inquisitio,  sese  defendat. 

XXIV.  Si  ad  examen  ac- 
cedere  recuset,  iterum  fit 
intimatio,  atque  in  ea  con- 
gruum tempus  perempto- 
rium praefinitur,  intra  quod 
reus  coram  tribunali  se 
sistere  debeat,  eique  signi- 
ficatur, si  non  pareat,  con- 
tumacem  esse  judicandum: 
quam  intimationem  si  baud 
probato  legitimo  impedi- 
mento transgrediatur,  ut 
contumax  de  facto  habe- 
bitur. 

xxv.  Verum  si  ad  examen 
accedat,  audiatur :  et  ubi 
inductiones  alicuius  valoris 
exliibeat,  eae  quantum  fieri 
potest  accurate  discutiantur. 

xxvi.  Dein  accedendum 
est  ad  contestationem  delicti 
etargumentorum,  quae  pro- 


2l6 


Appendix. 


senesono  avute,  per  credere 
I'inquisito  colpevole,  ed  in- 
corso  nelle  Relative  penalitzl 
canoniche. 

XXVII.  Avendo  in  questo 
modo  I'inquisito  piena  con- 
tezza  di  cio  che  esiste  in  atti 
a  suo  carico,  oltre  al  rispon- 
dere,  pud  anche  valersi  del 
diritto  che  ha  di  difendersi 
da  se  stesso. 

XXVIII.  Puo  altresi,  se  lo 
richiede,  ottenere  la  pre- 
fissione  di  un  termine  ad 
esibire  la  difesa  con  memoria 
scritta,  specialmentequando 
pel  disposto  dell'Art.  XXIII. 
non  avesse  potuto  prepararsi 
alle  risposte  in  sua  discolpa. 

XXIX.  Ultimato  11  pro- 
cesso,  il  compilatore  degli 
atti,  forma  il  ristretto  delle 
essenziali  risultanze  del  me- 
desimo. 

XXX.  Nel  giorno  che  si 
propone  la  Causa,  I'inqui- 
sito e  in  facoltjldi  farsi  rap- 
presentare  e  difendere  da 
altro  Sacerdote  o  da  laico 
Patrocinatore,  preventiva- 
mente  approvati  dall'Ordi- 
nario. 


at  that  the  accused  is  guilty 
and  has  incurred  the  corre- 
sponding canonical  penal- 
ties. 

XXVII.  The  accused  being 
thus  fully  informed  of  all 
that  lies  against  him  in  the 
acts  may,  besides  making 
a  simple  answer,  further 
claim  the  right  to  make  his 
defence  in  person. 

XXVIII.  He  may  also,  at 
his  request,  obtain  the  fixing 
of  a  date  for  handing  in  his 
defence  in  a  written  memo- 
rial, especially  if  owing  to 
the  provisions  of  art.  xxiii. 
he  had  had  no  opportunity 
to  prepare  a  reply  in  his  de- 
fence. 

XXIX.  When  the  informa- 
tive process  is  concluded,  the 
auditor  of  the  trial  will  make 
an  abstract  of  the  substantial 
results  obtained. 

XXX.  On  the  day  when  the 
case  is  called  up  by  the 
judge,  the  accused  is  at  lib- 
erty to  be  represented  and 
defended  by  another  clergy- 
man or  by  a  lay-counseh 
previously  accepted  by  the 
bishop. 


XXXI.  Ove  il  prevenuto  si  xxxi.  If   the   accused    re- 

ricusi  di  deputare    il  Difen-      fuse    to    name   counsel,    the 


Appendix. 


217 


tarum,  ad  retinendum  ac- 
cusatum  criminosum  lap- 
sumque  in  relativis  poenis 
canonicis. 

XXVII.  Quum  accusatus, 
tali  modo,  habeat  plenam 
cognitionem  eius  quod  in 
actis  extat  contra  se,  ultra 
quod  respondere  possit,  iure 
se  defendendi  a  semetipso 
etiam  uti  valet. 

XXVIII.  Potest  quoque, 
si  id  expetat,  obtinere  prae- 
fixionem  termini  ad  exhi- 
bendam  defensionem  cum 
memoria  in  scriptis,  praeci- 
pue  quando  ob  disposi- 
tionem  art.  xxiii  nequiverit 
paratus  esse  ad  responsa  pro 
sua  excusatione. 

XXIX.  Expleto  processu, 
actorum  instructor,  restric- 
tum  conficit  essentialium 
conclusionum  eiusdem. 

XXX.  In  die  qua  causa 
proponitur,  est  in  facultate 
accusati  faciendi  se  reprae- 
sentare  et  defendere  ab  alio 
sacerdote  aut  laico  patroci- 
natore,  antea  approbatis  ab 
Ordinario. 


XXXI.  Quatenus    praeven- 
tus  constituere    defensorem 


Slant,  ut  inquisitus  et  cul- 
pabilis  habeatur  et  in  poenas 
canonicas  incurrisse  cen- 
seatur. 

XXVII.  Inquisitus,  ubi  ex 
his  noverit  quae  in  actis 
contra  ipsum  relata  sunt,  ad 
ea  respondere  potest,  ac  si 
velit  utetur  jure  defensionis 
a  seipso  //;  scriptis  peragen- 
dae. 

XXVIII.  Potest  etiam,  si 
postulet,  obtinere  ut  ter- 
minus ad  defensionem 
script©  exhibendam  prae- 
figatur ;  maxime  si  ob  ea 
quae  art.  xxiii  indicata  sunt, 
responsionem  ad  accusa- 
tiones  contra  se  latas  parare 
non  potuerit. 

XXIX.  Absoluto  processu 
redactor  actorum  summa- 
rium  praecipuorum  argu- 
mentorum,  quae  ex  ipso 
elucent,  conficiat. 

XXX.  Qua  die  causa  pro- 
ponetur,  inquisito  fiet  facul- 
tas  defensionem  suam  per 
alium  sacerdotem  suo  no- 
mine in  scriptis  exhibendi. 
Quod  si  idoneum  non  reperiat, 
laicum  catholicum  adhibere 
potest.  Qiiisque  autem  ex 
lis  ab  Ordinario  appro- 
bandiis  est. 

XXXI.  Si  vero  reus  defen- 
sorem deputare  recuset,  Or- 


2i; 


Appendix. 


sore,  rOrdinario  provvede 
con  destinargliene  uno  d'of- 
ficio, 

xxxii.  II  Difensore  con  la 
dovuta  riservatezza  prende 
cognizione  del  processo  e 
del  ristretto  in  Cancelleria, 
onde  sia  in  grado  di  far  la 
difesa,  la  quale  puo  essere 
esibita  precedentementealla 
proposizione  della  Causa  in 
fogli  manoscritti.  E  pur 
esso  soggetto  aU'obbligo 
giurato  del  segreto,  qualora 
a  giudizio  dell  Ordinario  la 
natura  della  Causa  lo  esiga 

xxxiii.  Si  trasmette  quin- 
di  al  Procuratore  fiscale  il 
processo,  ed  il  ristretto 
perch^  adempia  alle  sue  in- 
combenze  di  officio:  e  poi  si 
passa  I'uno  e  I'altro  all'Or- 
dinario,  il  quale  presa  In- 
tegra cognizione  della  Causa, 
destina  il  giorno,  in  cui 
debba  discutersi  e  deciders!, 
facendone  dare  parteci- 
pazione  all'accusato, 

xxxiv,  Nel  giorno  stabi- 
lito  si  propone  la  Causa  in- 
nanzi  al  Vicario  generale 
con  I'interventodel  Procura- 
tore fiscale,  del  Difensore,  e 
del  Caucelliere. 

xxxv.  Dopo  il  parere 
fiscale,  e  le  deduzioni  difen- 


bishop  will  provide  for  the 
official  appointment  of  one. 

xxxii.  The  counsel,  sub- 
ject to  due  restriction,  takes 
notice  of  the  acts  and  the 
abstract  thereof  at  the  chan- 
cellor's office,  in  order  to  be 
in  a  position  to  make  the  de- 
fence; and  he  is  at  liberty  to 
hand  in  his  defence  in  writ- 
ing before  the  trial  comes 
off.  Counsel  also  may  be 
sworn  to  secrecy,  if  in  the 
judgment  of  the  Ordinary 
the  nature  of  the  case  re- 
quire it. 

XXXIII.  The  acts  and  the 
abstract  are  now  handed  over 
to  the  official  prosecutor  that 
he  may  fulfil  his  official 
duties;  both  are  then  taken 
to  the  Ordinary,  who,  after 
acquiring  a  full  knowledge 
of  the  case,  will  appoint  a 
day  for  the  hearing  thereof 
and  decision,  and  see  that 
the  accused  be  notified  of 
the  same. 

XXXIV.  On  the  day  ap- 
pointed the  case  is  brought 
up  before  the  vicar-general 
in  presence  of  the  fiscal 
procurator,  counsel  for  the 
defence,  and  the  chancellor. 

XXXV.  After  the  argu- 
ments of  the  official  prose- 


Appendix. 


219 


renuat,  Ordinarius  consulit 
constituendo  aliquem  ex 
officio. 

xxxli.  Defensor  caute  no- 
titiam  liaurit  processus  et 
restricti  in  cancellaria,  ut 
paratus  sit  ad  defensionem 
peragendam  quae  ante  pro- 
positionem  causae  exhiberi 
potest  in  scriptis.  Ipse  quo- 
que  subiicitur  oneri  secreti 
iurati,  quatenus  Ordinario 
videatur  indolem  causae  id 
expostulare. 

XXXIII.  Transmittiturdein 
procuratori  fiscali  processus 
et  restrictus,  ut  munere  suo 
ex  officio  fungatur;  uterque 
Ordinario  traditur  qui  plena 
causae  cognitione  adepta, 
diem  constituit  in  qua  dis- 
ceptanda  et  resolvenda  sit, 
curans  ut  accusatus  certior 
dc  hoc  fiat. 


xxxiv.  Dieconstituta  pro- 
ponitur  causa  coram  vicario 
generali,  interessentibus  pro- 
curatore  fisCali,  defensore  et 
cancellario. 

XXXV.  Post  votum  procu- 
ratoris  fisci  et  deductiones 
defensionis    profertur    sen- 


dinarius     ilium     ex     officio 
designabit. 

xxxii.  Defensor  debitis 
sub  cautelis  in  cancellaria 
curiae  processum  ejusque 
summarium  inspiciet,  ut 
reum  tueatur ;  ac  defen- 
sionem ante  causae  ipsius 
propositionem  scripto  ex- 
hibebit.  Ipse  quoque  ad 
juramentum  de  secreto  ser- 
vando  tenetur,  quando  judex 
indolem  causae  id  postulare 
censuerit, 

xxxiti  Processus  ejusque 
summarium  ad  procurato- 
rem  fiscalem  mittitur,  ut  of- 
ficio suo  fungi  possit.  Post- 
quam  procurator  fiscalis  suas 
condusiones  ediderit,  eaedem 
defensOri  ret  comrnunicandae 
Sunt  ut  ad  easdem  si  placuerit 
in  scriptis  respondeat ;  turn 
omnia  ad  ordinarium  re- 
mittunturqui,  ubi  in  plenam 
causae  cognitionem  deve- 
nerit,  diem  constituetin  qua 
sententia  dicenda  sit. 

XXXIV.  Praestituta  die,  ab 
Eptscopo  Vel  vicario  generali 
praesente  procuratore  fiscali 
et  defensore  sententia  pro- 
nunciatur,  ejusque  pars  dis- 
positiva  cancellario  dic- 
tatur,  expressa  mentione 
facta,     si      damnationi     sit 


220 


Appendix. 


sive  si  pronunzia  la  sentenza, 
dettandosi  al  Cancelliere  la 
dispositiva,  con  espressa 
menzione,  in  caso  di  con- 
danna,  della  sanzione  cano- 
nica  applicata  contra  I'im- 
putato. 


XXXVI.  La  sentenza  s'in- 
tima  al  prevenuto,  il  quale 
pud  interporne  appello  all' 
Autorit^  ecclesiastica  supe- 
riore. 

XXXVII.  Per  I'appello  si 
osservano  le  norme  stabilite 
dalla  Costituzione  Ad  mili- 
tatitis  della  sa.  me.  di  Bene- 
detto XIV  30  marzo  1742,  e 
le  altre  emanate  da  questa 
s.  Congregazione  col  De- 
creto  18  decembre  1835  e 
colla  Circolare  i  agosto 
1851. 

XXXVIII.  La  comparsa  per 
I'appello  deve  farsi  nel  ter- 
mine  di  giorni  dieci  dalla 
notifica  della  sentenza; 
scorso  inutilmente  questo 
termine,  la  sentenza  stessa  e 
in  istato  di  essere  eseguita. 

XXXIX.  Interposto  1'  ap- 
pello entro  i  dieci  giorni,  la 
Curia  senza  ritardo  rimette 
all'AutoritzL  ecclesiastica  su- 
periore,  innanzi  cui  si  e  ap- 

'  See  p.  241.  '  See 


cutor  and  those  for  the  de- 
fence have  been  heard,  sen- 
tence is  pronounced  and  the 
decision  proper  dictated  to 
the  chancellor;  but,  in  case 
of  condemnation,  explicit 
mention  must  be  made  of 
the  canonical  sanction  ap- 
plied to  the  accused. 

XXXVI.  The  sentence  is 
communicated  to  the  ac- 
cused, who  may  lodge  an  ap- 
peal to  higher  ecclesiastical 
authority. 

XXXVII.  In  case  of  appeal 
the  methods  laid  down  by 
Benedict  XIV.  of  p.  m.  in  the 
Const.  Ad  militaniis,  issued 
March  30,  1742,*  and  by  this 
S.  Congregation  in  a  decree 
issued  Dec.  18,  1835,"  and  in 
the  circular  letter  of  Aug.  i, 
185 1,'  are  to  be  followed. 

XXXVIII.  Notice  of  the  ap- 
peal must  be  given  within 
ten  days  after  receiving  no- 
tice of  the  sentence  ;  this 
time  having  passed  without 
any  action,  the  sentence 
awaits  execution. 

XXXIX.  If  the  appeal  be 
made  within  ten  days,  the 
diocesan  curia  will  forward 
without  delay  to  the  higher 
court,  to  which  appeal    has 

p.  234.  ^  See  p.  237. 


Appendix. 


221 


tentia,  dlctando  dispositi- 
vam  cancellario,  cum  expli- 
cita  mentione,  in  casu  dam- 
nationis,  canonicae  sanctio- 
nis,  accusato  applicatae. 


locus,  sanctionis  canonicae 
quae  contra  imputatum  ap- 
plicatur. 


xxxvi.  Sententia  indicitur 
praevento,  qui  appellationem 
interponere  potest  ad  aucto- 
ritateni  ecclesiasticam  su- 
periorem. 

XXXVII.  Pro  appellatione 
servantur  normae  statutae  a 
constitutione  Ad  viilitantis  s. 
m.  Bened.  XIV.  30  Martii 
1742,  aliaeque  emanatae  ab 
hac  s.  Congregatione  decreto 
18  Decembris  1835  el  iittera 
circulari  diei  i  Augusti  185 1. 


xxxviii.  Comparitio  pro 
appellatione  facienda  est  in- 
fra terminum  decern  dierum 
a  notificatione  sententiae; 
quo  termino  inutiliterehipso, 
sententia  ipsa  in  executionis 
statu  reperitur. 

XXXIX.  Interposita  appel- 
latione infra  decern  dies, 
curia  absque  mora  remittit 
ad  auciorifatem  ecclesiasti- 
cam superiorem,  apud  quam 


XXXV.  Sententia  reo  in- 
timetur,  qui  potest  ad  auc- 
toritatem  superioris  instan- 
tiae  appellationem  inter- 
ponere. 

xxxvi.  In  appellatione 
observentur  normae  expres- 
sae  in  constit.  s.  m.  Bene- 
dicti  XIV.  Ad  militantis  diei 
30  Martii  1742,  ac  ceterae 
indictae  a  S.  C.  Ep.  et  RR. 
decreto  diei  18  Decembris 
1835,  et  epistola  circulari 
diei  I  Aug.  1851. 

xxxvii.  Intra  terminum 
decem  dierum  a  notifica- 
tione sententiae  interpositio 
appellationis  fieri  debet,  quo 
ehipso  tempore  sententiae 
executio  locum  habet. 

xxxviii.  Appellatione  in- 
terposita, continuo  curia  ad 
auctoritatem  ecclesiasticam 
superioris  instantiae  omnia 
acta    causae    in    suis   auto- 


222 


Appendix, 


pellato,  tutti  gli  atti  original! 
della  Causa,  cioe  il  piocesso, 
il  ristretto,  le  difese,  e  la 
sentenza. 

XL.  L'autoritd  ecclesias- 
tica  superiore  presa  cogni- 
zione  dell'  atto  di  appello,  fa 
intimare  all'  appellante,  die 
nel  termine  di  gioriii  venti 
deputi  il  Difensore,  che  deve 
essere  approvato  daila  me- 
desima  superiore  Autorita. 

XLi.  Trascorso  renunciato 
termine  perentorio  senza  ef- 
fetto,  si  ritiene  che  I'appel- 
lante  abbia  rinunziato  al 
benefizio  dell'appello,  e 
questo  viene  in  consegtienza 
dall'Autoritil  superiore  di- 
chiaralo  perento. 

XLii.  Producendosi  I'.ap- 
pello  dalla  sentenza  di  una 
Curia  vescovile  alia  Metro- 
politana,  I'Arcivescovo  nella 
cognizione  e  decisione  della 
Causa  si  attiene  al  metodo 
di  procedura  tracciato  in 
questa  intruzione. 

XLiii.  Se  avvenga  die  un 
Cliierico,  in  oiita  al  privi- 
legio  del  fore,  sia  per  reati 
com  muni  sottoposto  a  pro- 
cedura e  giudicato  dal 
Potere  laico,  I'Ordinario  in 
tal  caso  prende  sommaria 
informazione  del  fatto  de- 
littuoso,    ed    esamina    se   a 


been  made,  all  the  original 
acts  in  the  case,  namely,  the 
minutes,  the  abstract,  the 
defence,  and  the  sentence. 

XL.  The  higher  ecclesiasti- 
cal authority  having  taken 
cognizance  of  the  appeal 
shall  notify  the  appellant 
that  within  twenty  days  he 
is  to  appoint  his  counsel, 
who  must  be  accepted  by 
the  same  higher  authority. 

XLL  If  this  peremptory 
limit  be  allowed  to  pass 
without  action,  the  appellant 
is  presumed  to  have  re- 
nounced the  benefit  of  ap- 
peal, and  the  appeal  is  ac- 
cordingly by  the  higher  au- 
thority declared  set  aside. 

XLII.  When  an  appeal  is 
taken  from  an  episcopal  to 
the  metropolitan  court,  the 
archbishop  in  taking  cogniz- 
ance of  and  deciding  the  case 
will  follow  the  methods  set 
forth  in  this  Instruction. 

XLIII.  If,  notwithstanding 
the  benefit  of  the  clergy,  a 
cleric  be  subjected  on  ac- 
count of  common  delicts  to 
a  criminal  suit  before  a  civil 
court,  the  Ordinary  in  this 
case  will  take  summary 
cognizance  of  the  delict  and 
consider  whether,  according 


Appendix, 


223 


appellatio  facta  est,  omnes 
actus  causae  originales,  id 
est  processum,  restrictum, 
defensiones  et  sententiam. 

XL.  Auctoritas  ecclesia- 
stica  superior,  capta  cogni- 
tione  actus  appellatiouis, 
intiiuare  facit  appellanti,  ut 
infra  terminum  viginti  die- 
rum  defensorem  constituat, 
qui  approbari  debet  ab 
eadem  superiori  auctoritate. 

XLi.  Decurso  dicto  termi- 
no  peremptorio  absque 
effectu,  censetur  appellan- 
tem  nuntium  misisse  ap- 
pellatiouis beneficio  et  haec 
consequenter  perempta  de- 
claratur  a  superiori  aucto- 
ritate. 

XLii.  Quum  appellatio 
producitur  a  sententia  ali- 
cuius  curiae  episcopalis  ad 
Metropolitanam,  Archiepis- 
copus  pro  cognitione  et  de- 
cisione  causae  sequitur  nor- 
mam  procedendi  in  hac  in- 
structione  traditam. 

XLiii.  Si  contingat  quod 
clericus,  non  obstante  fori 
privilegio,  ob  crimina  com- 
munia  subiiciatur  processui 
et  iudicio  laicae  potestatis, 
Ordinarius,  hoc  in  casu, 
summariam  sumit  criminosi 
facti  cognitionem,  atque 
perpendit  an  ipsum,  ad  tra- 


graphis,  id  est  processum, 
ejus  summarium,  defen- 
sionem  ac  sententiam  mittit. 

XXXIX.  Haec  porro  su- 
perioris  instantiae  auctoritas 
appellatione  cognita  appel- 
lanti injungit,  ut  intra 
triginta  dies  defensorem  de- 
putet,  qui  ab  ipsa  appro- 
bandus  est. 

XL.  Eo  termino  peremp- 
torio frustra  elapso,  censetur 
reus  beneficio  appellationis 
renuntiasse,  quam  propterea 
judex  gradus  superioris  per- 
emptam  declarat. 


XLL  In  appellatione  a  sen- 
tentia curiae  episcopalis  ad 
metropolitanam  Archiepis- 
copus  in  causa  cognoscenda 
ac  definienda  eadem  proce- 
dendi methodo  utetur,  quae 
in  hac  instructione  indi- 
catur. 

XLiL  Si  clericus  ob  com- 
munes reatus  a  civili  potes- 
tate  privilegio  fori  non  ob- 
stante processui  ac  judi- 
cio  subjiciatur,  Ordinarius 
summariam  informationem 
criminis  assumit,  ac  inquirit 
num  ad  normam  sacrorum 
canonum    infamiae,    irregu- 


224 


Appendix. 


senso  de'  sacri  canoni,  esso 
puo  dar  luogo  ad  infamia, 
ad  irregolarita  o  ad  altra  ec- 
clesiastica  sanzione. 

§  I.  Finche  pende  il  giu- 
dizio  o  I'imputato  sia  de- 
tenuto,  e  cosa  prudente,  che 
rOrdinario  si  limiti  a  misure 
provvisionali. 

§  2.  Teiminato  pero  il 
giudizio,  e  reso  libero  I'ac- 
cusato,  la  Curia,  giusta  i 
risultati  delle  informazioni 
come  sopra  assume,  pro- 
cede  analogamente  a  quan- 
to  e  disposto  nella  presente 
istruzione. 

XLiv.  Nei  casi  dubbi,  e 
nelle  varie  difficolta  pratiche 
in  cui  possano  incontrarsi, 
gli  Ordinari  prendono  cou- 
siglio  da  questa  s.  Corigre- 
gazione  per  evitare  contese 
e  nullita. 


to  the  holy  canons,  infamy, 
irregularity,  or  other  ecclesi- 
astical penalty  be  the  result, 

§  I.  Pending  the  suit,  and 
while  the  accused  is  held,  it 
will  be  prudent  for  the  Or- 
dinary to  confine  himself  to 
provisional  measures. 

§  2.  After  the  trial  and 
when  accused  has  been  re- 
leased, the  curia,  according 
to  the  results  of  informa- 
tions taken  as-  above,  will 
proceed  according  to  the 
norms  of  this  present  In- 
struction. 

XLIV.  In  dubious  casesand 
in  the  various  practical  diffi- 
culties that  may  arise,  Ordi- 
naries will  ask  advice  of 
this  Sacred  Congregation  to 
avoid  litigation  and  nullity. 


Ex  aud.  SSmi  did  \\  Junii  i88o. 

SSmus  Dnus  Noster  LEO  div.  prov.  PP.  XIII.,  audita 
relatione  praesentis  Instructionis  ab  infrascripto  Sac.  Con- 
greg.  Episcoporum  et'Regularium  Secietario, eam  in  omni- 
bus approbare  et  confirmare  dignatus  est. 

Romae  die  et  anno  quibus  supra. 

I.  Card.  Ferrieri,  Praef. 
I.  B.  Agnozzi,  Secretarius. 


Appendix. 


225 


dita  per  sacros  canones,  lo- 
cum faciat  infamiae,  irregii- 
laritati  autalii  ecclesiasticae 
sanctioni. 

§  I.  Donee  iudicium  pen- 
deat,  aut  accusatus  detentus 
sit,  prudens  est,  quod  Ordi- 
narius  sese  limitet  ad  media 
provisoria. 

§  2.  Expleto  tamen  iudi- 
cio,  et  libero  reddito  accu- 
sato,  curia  iuxta  exitum  in- 
formatioiium  ceu  superius 
assumptarum,  procedit  ad 
tramitesdispositionum  prae- 
sentis  instruclionis. 

XLiv.  In  casibus  dubiis  et 
in  variis  practicis  difficulta- 
tibus,  quae  contingere  pos- 
sint,  Ordinarii  consniant 
hanc  s.  Congregationem,  ad 
vitandas  contentiones-  et 
nuUitates. 


laritati,vel  alii  ecclesiasticae 
sanctioni  locus  esse  possit. 


1°.  Pendente  judicio  vel 
imputato  in  carcere  detente 
prudens  consilium  erit,  ut 
Ordinarius  ordinationes 
mere  provisorias  adhibeat. 

2°.  Judicio  absoluto,  si 
liber  accusatus  remittatur, 
curia  episcopalis  juxta  in- 
formationes  ut  supra  as- 
sumptas  earatione  procedet, 
quae  in  hac  instructione  con- 
stituitur. 

XLiii.  In  casibus  dubiis 
diversisque  in  praxi  difficul- 
tatibus  Ordinarii  Sacram 
hanc  Congregationem  con- 
sulant,  ut  contentiones  ac 
nuUitatem  actorum  devitent. 


XLIV.  Haudita  facile  curiae 
episcopates  ad  damna  vel  expensas'  resarciendas  damnari poterunt; 
quoties  eiiim  ex  processu  informativo  indicia  sufficientia  ad  agen- 
dum contra  inquisitum  appareant,  judex  appellationis  a  talibus 
damnationibus  abstineat,  cum  ea  indicia  siifficiant  ut  in  ji/dice, 
qui  antea  processit,  ea  vera  et  propria  calumnia  excludatur,  quae 
ad  hujusmodi  damnationem  requiritur. 

XLV.  Concilii  Pleiiarii  Bal^ 
timorensis  II.  decreta  n.  125  quoad  naturam  v.issionuin,  et  nn. 
77,  108  quoad  juridicos  effectus  remotionis  missionariorum  ab 
officio,  nuUatenus  innoz'ata  seu  infirmata  intetliguntur,  salvis  iis 
quae  recentius  de  parochis  seu  rectoribus  inamovibilibus  consti- 
tuta  sunt. 


226  Appendix. 


Instructio  S.  Congregationis  de  Prop.  Fide  de  Com 

MISSIONE    InVESTIGATIONIS.* 

Quamvis  Concilium  Plenarium  Baltimorense  II.  ab 
Apostolica  Sede  recognitum,  certam  quamdam  iudicii  for- 
mam,  iam  antea  a  concilio  provincial!  S.  Ludovici  sanci- 
tam,  in  criminalibus  clericorum  causis  ab  ecclesiasticis 
curiis  dioecesium  Foederatorum  Septentrionalis  Americae 
Statuum  pertractandis  servandam  esse  decreverit,  experi- 
entia  tamen  compertum  est,  statutum  iudicii  ordinem  haud 
undequaque  parem  esse  ad  querelas  eorum  praecavendas, 
quos  poena  aliqua  mulctari  contigerit.  Saepe  enini  post- 
remis  hisce  temporibus  accidit,  ut  presbyteri  iudiciis  ea 
ratione  initis  latisque  sententiis  damnati,  remoti  praeser- 
tim  ab  officio  rectoris  missionarii,  hue  illuc  de  suis  Prae- 
latis  conquesti  fuerint  et  frequenter  etiam  ad  Apostolicam 
Sedem  recursus  detulerint,  Dolendum  autem  est,  non 
raro  evenire,  ut  in  transmissis  actis  plura,  eaque  necessaria 
desiderentur,  atque  perpensis  omnibus  gravia  saepe  dubia 
oriantur  circa  fidem  documentis  hisce  in  causis  allatis  ha- 
bendam  vel  denegandam. 

Quae  omnia  S.  Congregatio  fidei  propagandae  praepo- 
sita  serio  perpendens,  aliquod  remedium  hisce  incommodis 
parandum,  ac  ita  iustitiae  consulendum  esse  censuit,  ut 
neque  insontes  clerici  per  iniuriam  poena  afficiantur,  neque 
alicuius  criminis  rei  ob  minus  rectam  iudiciorum  formam  a 
promerita  poena  immunes  evadant.  Quod  quidem  facili 
pacto  obtineret,  si  omnes  praescriptiones  a  sacris  canonibus 
sapienter  editas  pro  ecclesiasticis  iudiciis,  praesertim  crimi- 
nalibus, ineundis  et  absolvendis  servandas  omnino  esse 
praeciperet.     Verum  animo  reputans,  in  praedictis  Foede- 

*  The  Latin  notes  are  from  the  answer  of  the  S.  C,  given  in  full  in 
the  Appendix  C.  PI.  B.  IIT.,  p.  296. 


Appendix.  227 

ratonim  Ordinum  regionibus  id  facile  servari  non  posse,  ea 
ratione  providendum  esse  duxit,  ut  saltern  illae  de  admisso 
crimine  accurate  peragantur  investigationes,  quae  omnino 
necessariae  existimantur,  antequam  ad  poenam  irrogandam 
deveniatur.' 

Itaque  SSmo.  Domino  Nostro  Divina  Providentia  PP. 
Leone  XIII.  approbante,  in  generalibus  comitiis  habitis  die 
25  lunii  1878,  S.  Congr.  decrevit  ac  districte  mandavit,  ut 
singuli  memoratae  regionis  sacrorum  Antistites  in  dioece- 
sana  synodo  quamprimum  convocanda  quinque,  aut  ubi  ob 
peculiaria  rerum  adiuncta  tot  liaberi  nequeant,  tres  saltern 
presbyteros  ex  probatissimis,  et  quantum  fieri  poterit  in 
iure  canonico  peritis  seligant,  quibus  consilium  quoddam 
iudiciale,  seu,  ut  appellant,  Commissio  Investigationis  con- 
stituatur,  eidemqiie  unum  ex  electis  praeficiant.  Quod  si 
ob  aliquam  gravem  causam  synodus  dioecesana  statim  lia- 
beri nequeat,  quinque  vel  tres  prouti  supra  per  Episcopum 
interim  ecclesiastici  viri  ad  munus  de  quo  agitur  depu- 
tentur. 

Commissionis  ita  constitutae  princeps  erit  officium  cri- 
minales  atque  disciplinares  presbyterorum  aliorumque 
clericorum  causas,  iuxta  normam  mox  proponendam,  ad 
examen  revocare,  rite  cognoscere  ac  ita  Episcopo  in  ipsis 
definiendis  auxilium  praebere.    Satagant  propterea  oportet 

'  i.  Instructio  dit  i  20  lulii  1878  lata  est  de  casibu",  in  quibus  ecclesia- 
stica  poena  seucensura  sit  infligenda.  aut  gravi  disciplinari  coercilioni  sii 
locus.  Hinc  C.  Pi.  C.  Bait,  decreta  n.  125  quoad  naturam  missionum, 
nn.  77,  loS.  quoad  iuridicos  effectus  remotionis  missionariorum  ab  officio 
nuUatenus  innovataseu  infirmata  fuerunt. 

Episcopi  vero  curent,  ne  sacerdotes  sine  gravi  et  rationabili  causa  de 
una  ad  aliam  tnissionem  invitos  transferant.  Quod  si  de  alicuius  rectoris 
definitiva  remutione  a  munere  in  poenam  delicti  infligenda  agatur,  id 
Episcopi  execution!  non  tnandent,  nisi  audito  prius  Consilio 

iv.  Per  Instructionem  sublata  non  est  Episcopis  extraordinaria  facul- 
tas  procedendi  ad  snspensionem  ex  informata  conscientia,  quatenus  gra- 
vissimas  et  canonicas  causas  concurrere  in  Domino  iudicaverint.  aut 
gravi  et  urgente  necessitate  pro  salute  animarum,  etiaan  non  audito  con- 
silio, remedio  aliquo  providendum  esse  ccnsuerint. 


228  Appendix. 

ad  hoc  munus  electi,  ut  accuratae  fiant  investigationes,  ea 
proferantur  testimonia  atque  a  praesumpto  reo  omnia  ex- 
quirantur,  quae  ad  veritatem  eruendam  necessaria  censen- 
tur ac  ad  iustam  sententiam  tuto  prudenterque  ferendam 
carta  vel  satis  firma  argumenta  suppeditent. 

Quod  si  de  alicuius  rectoris  missionis  remotione  agatur, 
nequeat  ipse  a  credito  sibi  munere  deiici,  nisi  tribus  saltern 
piaedictae  Commissionis  membris  per  Episcopum  ad  cau- 
sam  cognoscendam  adhibitis,  eorumque  consilio  audito. 

Electi  consiliarii  in  snscepto  munere  permanebunt  ad 
proximam  usque  dioecesanae  synodi  celebrationem,  in  qua 
vel  ipsi  confirmentur  in  officio  vel  alii  designentur.  Quod 
si  interim  morte,  aut  renuntiatione  vel  alia  causa  praescrip- 
tus  consiliariorum  numerus  minuatur,  Episcopus  extra 
synodum  alios  in  deficientium  locum,  prout  superius  statu- 
tum  est,  sufficiat. 

In  causis  cognoscendis,  iis  praesertim  in  quibus  de  rec- 
tore  missionario  definitive  a  suo  officio  amovendo  agatur, 
iudicialis  Commissio  banc  sequetur  agendi  rationem. 

1.  Ad  Commissionem  investigationis  non  recurratur,  nisi 
prius  clare  et  praecise  exposita  ab  Episcopo  causa  ad  deiec- 
tionem  finalem  movente,  ipse  rector  missionarius  malit 
rem  ad  Consilium  deferri,  quam  se  a  munere  et  officio 
sponte  dimittere. 

2.  Re  ad  Consilium  delata,  Episcopus  vicario  suo  gene- 
rali  vel  alii  sacerdoti  ad  hoc  ab  ipso  deputato  comittat,  ut 
relationem  causae  in  sciiptis  conficiat,  cum  expositione  in- 
vestigationis eo  usque  peractae,  et  circumstantiarum,  quae 
causam  vel  eiusdem  demonstrationem  specialiter  afficiant. 

3.  Locum,  diem,  et  horam  opporlunam  ad  conveniendum 
iudicet,  idque  per  litteras  ad  singulos  consiliarios. 

4.  Per  litteras  etiam  rectorem  missionarium,  de  quo 
agitur,  ad  locum  et  diem  constitutum  ad  Consilium  haben- 
dum advocet,  exponens,  nisi  prudentia  vetat,  uti  in  casu 
criminis  occulti,  causam  ad  deiectionem  moventem,  per  ex- 
tensum  monensque  ipsum  rectorem,  ut  responsum  suis  ra- 
tionibus   suffulfum    ad    ea    praeparet    in    scriptis,  quae    in 


Appendix.  229 

causae   expositione  vel   iam    antea   oretenus,  vel   tunc  in 
scriptis  relata  fuerint. 

5.  Convenientibus  consiliariis  tempore  et  loco  praefinitis, 
praecipiat  Episcopus  silentium  servandum  de  iis,  quae  in 
Consilio  audiantur;  moneat  investigationem  non  esse  pro- 
cessum  iudicialem,  sed  eo  fine  habitam,  et  eo  modo  facien- 
dam,  ut  ad  cognitionem  veritatis  diligentiori  qua  poterit 
raiione  perveniatur,  adeo  ut  unusquisque  consiliarius,  per- 
pensis  omnibus,  opinionem  de  veritate  factorum,  quibus 
causa  innititur,  efformare  quam  accurate  possit.  Moneat 
etiam  ne  quid  in  investigatione  fiat,  quod  aut  ipsos,  aut 
alios  pericuio  damni  vel  gravaminis  exponat,  praesertim 
ne  locus  detur  actioni  libelli  famosi,  vel  alii  cuicumque 
processui  coram  tribunal!  civili. 

6.  Relatio  causae  legatur  coram  Consilio  ab  Episcopt 
officiali,  qui  etiam  ad  interpellationes  respondebit  a  prae- 
side  vel  ab  aliis  consiliariis  per  praesidem  faciendas  ad 
uberiorem  rei  notitiam  assequendam. 

7.  Deinde  in  Consilium  introducatur  rector  missiona- 
rius,  qui  responsum  a  se  confectum  leget,  et  ad  interpella- 
tiones similiter  respondebit,  facta  ipsi  plena  facultate  ea 
omnia  in  medium  afferendi,  intra  tempus  tamen  a  Consilio 
determinandum,  quae  ad  propriam  defensionem  conferre 
possunt.' 

8.  Si  contingat,  rectorem  missionarium,  de  cuius  causa 
agitur,  nolle  ad  Consilium  accedere,  iterum  datis  litteris 
vocetur,  eique  congruum  temporis  spatium  ad  comparen- 
dum  praefiniatur,  et  si  ad  constitutum  diem  non  comparu- 
erit,  dummodo  legitime  praepeditus  non  fuerit,  uii  coniu- 
max  habeatur. 

9.  Quibus  omnibus  rite  expletis,  consiliarii  simul  consilia 
coiiferant,  et  si  maior  pars  consiliariorum  satis  constare 
de  factis  arbitretur,  senteniiam  suam  unusquisque  consilia- 
rius in  scriptis  exponat  rationibus  quibus  nititur  expressis; 

'  iv.  Liberum  cuique  rectori  est  alium  sacerdotem  ab  Episcopo  appro' 
bandum  secum  habere  coram  Consilio  sive  ad  simplicem  adsistentiam 
tive  ad  suas  animadversioiies  aut  defensionem  exhibendam. 


230  Appendix. 

conferantur  sententiae;  acta  in  Consilio  ab  Episcopi  offi- 
ciali  redigantur,  a  praeside  nomine  Consilii  subscribantur, 
et  simul  cum  sententiis  singulorum  in  extenso  ad  Episco- 
pum  deferantur. 

10.  Quod  si  ulterior  investigatio  necessaria  vel  congrua 
videatur,  eo  ipso  die,  vel  alio  ad  conveniendum  a  Consilio 
constituto,  testes  vocentur  quos  opportunos  Consilium  iu- 
dicaverit,  audito  etiam  rectore  missionario  de  iis  quos  ipse 
advocandos  esse  voluerit. 

11.  Singuli  testes //c  causa  seorsim  et  accurate  examinen- 
tur  a  praeside  et  ab  aliis  per  praesidem,  absente  primum 
rectore  missionario.  Non  requiratur  iuramentum,  sed  si 
testes  ipsi  non  renuant,  et  se  paratos  esse  declarent  ad  ea 
quae  detulerint  iuramento,  data  occasione,  confirmanda, 
fiat  adnotatio  huiusmodi  dispositionis  seu  declarationis  in 
actis. 

12.  Consentientibus  testibus,  et  dirigente  prudentia  Con- 
silii, repetatur  testimonium  coram  rectore  missionario,  qui 
et  ipse  testes  si  voluerit  interroget  per  piaesidem. 

13.  Eadem  ratione  qua  testes  pro  causa,  examinentur 
testes  contra  cans  am. 

14.  Collatis  tunc  consiliis  fiat  ut  supra  n.  9. 

15.  Quod  si  testes  nolint  aut  nequeant  Consilio  assistere, 
veleorum  testimonium  nondum  satis  luculentum  negotium 
reddat,  duo  saltem  ex  Consilio  deputentur,  qui  testes  ad- 
euntes,  loca  invisentes,  vel  alio  quocumque  modo  poterunt, 
lumen  ad  dubia  solvenda  requirentes,  relationem  suae  in- 
vestigationis  ad  Consilium  deferant,  ut  ita  nulla  via  inten- 
tata  relinquatur  ad  verum  moraliter  certo  cognoscendum 
antequam  ad  sententiae  prolationem  deveniatur. 

16.  Omnia  acta  occasione  iudicii  in  medium  allata  accu- 
rate in  curia  episcopali  custodiantur,  ut  in  casu  appellatio- 
nis  commode  exhiberi  valeant, 

17.  Si  vero  contingat,  ut  a  sententia  in  curia  episcopali 
prolata  ad  Archiepiscopalem  provocetur,  Metropolitanus 
eadem  methodo  in  causae  cognitione  et  decisione  pro- 
cedat. 


Appendix.  231 

Ex  aedibus  praefatae  S.  Congregationis  die  20  lulii  anni 
1878. 

loANNES  Card.  Simeoni,  Prarfectus. 
loANNES  Baptista  Agnozzi,  Secretarius. 


Instructio    S.    Congregationis    de    Prop.    Fide    supra 

SUSPENSIONIBUS   EX    InFORMATA    CONSCIENTIA. 

Omni  tempore  sollicita  fiiit  Ecclesia  ut  non  solum  ascen- 
sus  ad  sacros  Ordines  interdiceretur  iiidignis,  verum  eiiara 
ab  eorumdem  exercitio  criminosi  suspensi  manerent. 

Cum  aiitem  occultorum  quoque  criminum,  quaeque  pro- 
dere  non  expediret,  facilis  et  prompta,  nempe  a  iudiciaiiis 
formis  libera,  coercitio  aliquando  necessaria  sit  ad  sacri 
ministerii  dignitatem,  et  fidelium  iitilitatem  tuendam;  hinc 
sapientissimo  consilio  Tridentini  Patres  Sess.  xxiv.  cap.  1. 
de  Reform,  decreverunt:  "^/  ctii  ascensus  ad  sacros  ordines  a 
suo  Praelato  ex  quaciimque  causa,  etiam  ob  occtiltum  crimen^ 
quoinodolibet,  etiain  extraiudicialiter  fuerit  interdictus,  aut  qui  a 
suis  ordiuibus  seu  gradibus  vel  dignitatibus  ecclesiasticis  fuerit 
suspeiisus,  nulla  coutra  ipsius  Praelati  voluntatem  concessa  licentia 
de  se  proinoveri  faciendo,  aut  ad  prior es  ordines,  gradus  et  digni- 
tates  sive  honor  es  restitutio  suffragetur." 

Ex  hoc  provido  decreto,  in  eo  quod  refertur  ad  Clerico- 
rum  crimina,  quae  extraiudicialem  suspensionem  ab  eccle- 
siasticis officiis  merentur,  iamdudum  in  usu  fuit  suspensi- 
onis  poena  ex  causis  Praelato  notis;  quae  nempe  audit 
suspensio  ex  informata  conscientia.  Ad  hoc  itaque  ut  in 
eadem  infligenda,  cum  niaiori  qua  potest  cauiela  et  securi- 
tate  Ordinarii  catholicarum  missionum  procedant,  S.  Con- 
gregatio  de  Propaganda  Fide  praesentem  instructionem 
edendam  censuit,  cui  iideni  Ordinarii  in  adhibendo  hoc  ex- 
traordinario  remedio  sese  conformare  curabunt. 


232  Appendix, 

1.  Suspensio  ex  informata  conscientia,  non  secus  ac  ilia, 
quae  per  iudicialem  sententiam  infligitur,  personam  eccle- 
siasticam  a  suis  ordinibus,  seu  giadibus,  vel  dignitatibus 
ecclesiasticis  exercendis  interdicit, 

2.  In  hoc  praecipue  ipsa  diffeit  a  iudiciali  suspensione, 
quod  adliibetur  tamquam  extraordinarium  remedium  in 
poenam  admissi  criminis;  ideoque  ad  eiusdem  imposi- 
tionem  non  requiruiitur  nee  formae  iudiciales,  nee  canoni- 
cae  admouitiones.  Satis  erit  proinde,  si  Praelatus  hanc 
poenam  infligens,  simplici  utatur  piaecepto,  quo  declaret 
se  suspensionem  ab  exercitio  sacrorum  officiorum  vel  eccle- 
siasticorum  munium  indicere. 

3.  Huiusmodi  praeceptum  semper  in  scriptisintimandum 
est,  die  et  mense  designato;  ideoque  autem  fieri  debet  vel 
ab  ipso  Ordinario,  vel  ab  alia  persona  de  express©  ipsius 
mandato.  In  eadem  tamen  intimaiione  exprimendum  est, 
quod  eiusmodi  punitio  irrogatur  in  vim  Tridentini  decreti, 
Sess.  xiv.  c.  I.  de  reform.,  ex  informata  conscientia  vel  ex 
causis  ipsi  Ordinario  notis. 

4.  Debent  insuper  exprimi  partes  exercitii  ordinis  vel 
officii,  ad  quas  extenditur  suspensio;  quod  si  suspensus  in- 
terdictus  sit  ab  officio,  cui  alter  in  locum  ipsius  substituen- 
dus  est,  ut  puta  Oeconomus  in  cura  animarum,  tunc  substi- 
tutus  mercedem  percipiet  ex  fructibus  beneficii  in  ea  por- 
tione,  quae  iuxta  prudens  Ordinarii  arbitrium  taxabitur. 
At  si  suspensus  in  hac  taxatione  se  gravatum  senserit, 
moderationem  provocare  poterit  apud  curiam  Archiepisco- 
palem,  aut  etiam  apud  Sedem  Apostolicam. 

5.  Exprimi  item  debet  tempus  durationis  eiusdem  poenae. 
Abstineant  tamen  Ordinarii  ab  ipsa  infligenda  in  perpe- 
tuum.  Quod  si  ob  graviores  causas  Ordinarius  censuerit 
cam  imponere  non  ad  tempus  determinatum,  sed  ad  suum 
beneplacitum,  tunc  ipsa  habetur  pro  temporanea,  ideoque 
cessabit  cum  iurisdictione  Ordinarii  suspensionem  infli- 
gentis. 

6.  Suspension!  ex  informata  conscientia  iustam  ac  legiti- 
mam   causam  praebet  crimen,  seu  culpa  a  suspenso  com- 


Appendix.  233 

missa.     Haec  autem  debet  esse  occulta,  et  iia  gravis,  ut 
talem  promereatur  punitionem. 

7.  Ad  hoc  autem  ut  sit  occulta  requiritur,  ut  neque  in 
iudicium,  neque  in  rumores  vulgi  deducta  sit,  neque  insuper 
eiusmodi  numeroet  qualitati  personarum  cognita  sit,  unde 
delictum  censeri  debeat  notorium. 

8.  Verum  tenet  etiam  suspensio  si  ex  pluribus  delictis 
aliquod  fuerit  notum  in  vulgus;  aut  si  crimen,  quod  ante 
suspensionem  fuerat  occultum,  deinceps  post  ipsam  fuerit 
ab  aliis  evulgatum. 

9.  Prudent!  arbitrio  Praelatorum  relinquitur  snspensi- 
onis  causam,  seu  ipsam  culpam  delinquenti  aut  patefacere, 
aut  reticere.  Partes  alioquin  pastoralis  sollicitudinis  et 
charitatis  eorumdem  erunt,  ut  si  istiusmodi  poenam  sus- 
pense manifestare  censuerint,  ipsa  ex  paternis,  quas  inter- 
ponent,  monitionibus,  nedum  ad  expiationem  culpae,  verum 
etiam  ad  emendationem  delinqiientis,  et  ad  occasionem 
peccandi  eliminandam  inserviat. 

10.  Meminerint  vero  Praesules,  quod  si  contra  decretum, 
quo  irrogata  fuit  suspensio,  promoveatur  recursus  ad 
Apostolicam  Sedem,  tunc  apud  ipsam  comprobari  debet 
culpa,  quae  eidem  praebuit  occasionem.  Consultum 
idcirco  erit,  ut  antequam  haec  poena  infligatur,  probationes 
illius,  quamtumvis  extraiudicialiter  et  secreto  colligantur; 
ita  ut  eo  ipso,  quod  cum  omni  certiudine  culoabilitatis  in 
punitione  inferenda  proceditur,  si  deinceps  causa  exami- 
nanda  est  apud  Apostolicam  Sedem,  probationes  criminis 
in  eas  difficultates  hand  impingant,  quae  ut  plurimum  oc- 
currunt  in  istiusmodi  iudiciis. 

11.  A  decreto  suspensionis  ex  informata  conscientia  non 
datur  appellatio  ad  tribunal  superioris  ordinis.  Postquam 
idcirco  clericus  intimationem  suspensionis  habuerit,  si  ni- 
hilominus  appellationem  interponere,  eiusque  obtentu  in 
altari  ministrare,  seu  quovis  modo  suum  ordinem  solemni- 
ter  exercere  praesumat,  statim  incidit  in  irregularitatem. 

12.  Semper  tamen  patet  aditus  ad  Apostolicam  Sedem; 
et   in  casu   quo   clericus  absque    sufficienii    ac    rationabili 


234  Appendix. 

causa  se  hac  poena  nmltatum  reputet,  recurre»"e  poterit  ad 
Summuin  Pontificem.  Interim  tamen  in  vigore  permanet 
decretum  suspensionis  usque  dum  ab  ipso  Pontifice,  vel  a 
S.  Congregalione,  quae  de  recursu  iudicare  debet,  nou 
fuerit  rescissum  aut  etiam  moderatum. 

13.  Ceterum  ex  quo  istiusmodi  poena  est  remedium 
omnino  extraordinarium,  quod  praesertiin  ad  expiationem 
criminum  absque  formis  iudiciariis  adhibetur,  prae  oculis 
habeant  Praelati  id  quod  sapientissime  admonet  Summus 
Pontifex  s.  m.  Benedictus  XIV.  in  suo  tractatu  de  Synodo 
Dioeces.  I.  xii.  c.  8.  //.  6.,  quod  nimirum  repreliensibilis  foret 
Episcopus,  si  in  sua  synodo  declararet,  se  deinceps  ex  pri- 
vata  tantum  scientia  cum  poena  suspensionis  a  divinis 
animadversurum  in  clericos,  quos  graviter  deliquisse 
compererit,  quamvis  eoium  delictum  non  possit  in  foro 
externo  concludenter  probari,  aut  iilud  non  expediat  in 
aliorum  notitiam  deducere. 

Romae  ex  Aedibus  S.  Congregationis  de  Prop.  Fide  die 
20  Octobris  1884. 


Decretum  S.  Congregationis   Episcoporum  et   Regu- 

LARIUM    PRO    CaUSIS    CrIMINALIBUS.* 

Non  ita  pridem  a  S.  Congregatione  negotiis  et  consulta- 
tionibus  Episcoporum  et  Regularium  praeposita  nonnullae 
regulae  praescriptae  fuerunt  pro  recta  et  expedita  defini- 
tione  causarum  criminalium,  quae  a  Curiis  Episcoporum  vel 
Ordinariorum  ad  eamdem  S.  Congregationem  in  gradu  ap- 
pellationis    deferuntur.'      Quas    quidem    praescriptiones, 

'  The  procedure  before  the  S.  Congregation  varies  according  as  the  issue 
is  more  or  less  important.  Ordinary  and  unimportant  cases  are  brought 
before  the  full  meeting  {in  plend)  by  the  secretary,  who  states  the  two 
sides,  pro  and  con,  of  the  case.     But  when  the  matter  is  of  great  impor- 

*  Cfr.  on  p.  240  the  Dispositio  S.  C.  Epp.,  26  Mch.  1886. 


Appendix.  235 

quoniam  impedimenta  sublata  sunt,  quae  aliqua  ex  parte 
earum  executioni  interposita  fuerant,  visum  est  Eminen- 
tissimis  Palribus  in  Conventu  iiabito  XV.  Calend.  Januar. 
MDCCCXXXV.  uberius  explicare,  et  cum  assensu  et  ap- 
probatione  S.  D.  N.  Gregoiii  XVI.  iterum  promulgare,  ut 
ab  omnibus,  ad  quos  pertinent,  accuratissiine  serventur. 
Sunt  autem  quae  sequuntur, 

I.  Reis  a  Curiis  Episcopalibus  criminal!  judiciodamnatis 
spatium  dierum  decem  conceditur,  quo  ad  S.  Congrega- 
tionem  Episcoporum  et  Regularium  appellare  possint. 

II.  Decem  dies  numerari  incipient  non  a  die,  quo  senten- 
tia  lata  est,  sed  a  die,  quo  reo  vel  ejus  defensori  per  cur- 
sorem  denuntiata  fuit, 

III.  Eo  tempore  elapso,  quin  reus  vel  ejus  defensor  ap- 
pellaverit,  latam  a  se  senteutiam  Episcopus  exequetur. 

IV.  Interposita  intra  decem  dies  appellatione  Curia  Epis- 
copalis  acta  autographa  totius  Causae  ad  S.  Congrega- 
tionem  continuo  transmittat,  nempe: 

1.  Processum  ipsum  in  Curia  confectum. 

2.  Ejus  restrictum,  seu  compendiariam  expositionem 
eorum,  quae  ex  eodem  processu  emergunt. 

3.  Defensiones  pro  reo  exhibitas. 

4.  Denique  sententiam  latam. 

V.  Ipsa  Curia  reo,  ejusque  defensori  denuntiabit,  appel- 
lationem  coram  eadem  S.  Congregatione  prosequendam 
esse. 

VI.  Si  nemo  compareat  aut  si  appellationis  acta  negli- 

tance  and  requires  special  investigation,  one  of  the  eminent  members 
of  the  S.  C.  is  appointed  referee  {judex  relator),  who  may  associate  with 
himself  one  or  more  or  the  approved  consultors.  Gregory  XVI.  on  the  5 
Sept.  1834  granted  the  following  request  of  the  S.  C.  viz.:  Eminentissimi 
Patres  .  .  .  rati  sunt  rem  utilem  fore,  si  exemplo  aliquarum  Congrcga- 
tionum  majorum  nonnulli  consultores  deligcrentur,  quorum  esset  super 
dubiis  seu  quaestionibus,  de  quibus  rogarentur.  sententiam  suam  expo- 
nere.  firmis  tamen  manentibus  antiquis  inslitutionibus,  ita  ut  de  ncgotiis 
alicujus  pondcris,  deque  consult.itionilms  omnibus  in  pleno  Auditorio 
semper  deliberetur  et  statuatur  designato  aliquo  ex  Emincniissimis  Pa- 
tribus  "  qui  videat  et  r«ferat." 


236  Appendix. 

genter  vel  malitiose  protrahantur/  congruens  tempus  a  S. 
Congregatione  praefinietur,  quo  inutiliter  elapso,  causa  de- 
serta  censeatur,  et  sententia  Curiae  Episcopalis  execution! 
mandetur. 

VII.  Reo  aut  illi,  qui  ejus  defensionem  suscepit,  traden- 
dus  est  restrictus  processus,^  qui  a  Judice  relatore  confici- 
tur. 

viii.  Allegationes  seu  defensiones  Eminentissimis  Patri- 
busdistribuendas  typis  non  committantur,  nisi  Judex  relator 
imprimendi  veniam  dederit. 

IX.  Causa  definietur  statuta  die  ab  Eminentissimis  Pa- 
tribus  in  pleno  Auditorio  congregatis. 

X.  Eidem  Congregationi  Procurator  Generalis  Fisci  et 
Judex  relator  intererunt, 

XI.  Judex  relator  de  toto  statu  causae  ad  Eminentissimos 
Patres  referet,  et  Procurator  Generalis  Fisci  stabit  pro 
Curia  Episcopali,^  suasque  conclusiones  explanabit. 

XII.  Post  haec  Eminentissimi  Patres  judicium  proferent, 

'  No  definite  term  is  mentioned  when  the  appellant  must  appear.  He 
is  supposed  to  do  it  within  reasonable  time,  otherwise  a  peremptory 
term  will  be  given  him  by  the  S.  C,  which  is  rather  lenient  in  this  matter, 
and  does  sometimes  grant  several  terms  before  it  will  throw  the  appeal 
out  from  the  docket.  Droste  thinks  that  the  term  of  twenty  days  men- 
tioned in  the  Circular  of  1851  apply  only  to  cases  brought  from  the  epiS' 
copal  courts  of  the  Papal  States  for  which  the  S.  C.  acts  as  first  appellate 
court.  However,  the  Inslr.  1880,  art.  36,  and  the  Decree  1886,  art.  6, 
seem  to  extend  the* provisions  of  1851  to  ail  episcopal  courts  to  which 
the  Instruction  itself  was  sent;  hence  the  same  rules  apply  in  this  regard 
to  all  appeals  whether  they  go  to  the  metropolitan  or  to  the  S.  C.  Epp. 

^  Cfr.  Disposiiio  1886.  arts.  1-4.  Appellant  is  not  furnished  with  the  acts 
of  the  former  trial,  but  only  with  an  abstract  of  them,  which  the  Eminent 
Referee  must  supply.  This  is  quite  sufficient,  as  appellant  may  have 
got  the  full  acts  copied  by  the  chancellor,  or  by  his  counsel.  These  he 
may  now  send  to  his  attorney  at  the  tribunal  of  the  S.  C. 

^The  office  of  fiscal  procurator-general  was  created  by  Benedict  XHI., 
a.  1724.  This  officer  was  to  act  as  attorney  for  the  bishops  in  any  case? 
brought  by  or  against  them  to  the  S.  C.  Epp.  The  Decree  1886  in  arts 
3,  4  evidently  introduces  a  similar  procedure  in  scriptis  before  the  S.  C, 
as  the  Cum  Magn.  orders  for  the  lower  courts  in  arts.  32,  33. 


Appendix.  237 

sententiam  Curiae  Episcopalis  aut  confirmando,  aut  infir- 
mando,  aut  etiam  reformando. 

XIII.  Prolata  sententia  una  cum  omnibus  Actis  causae 
ad  eamdem  Curiam  Episcopalem  remittitur,  ut  eam  exe- 
quatur. 

XIV.  Revisio,  seu  recognitio  rei  judicatae  non  conceditur, 
nisi  ejus  tribuendae  potestas  a  Sanctitate  Sua  facta  fuerit, 
et  subsint  gravissimae  causae,  super  quibus  cognitio,  et 
judicium  ad  plenam  Congregationem  pertinet. 

XV.  Sciant  denique  Curiae  Episcopales  per  novissimas 
leges,  quae  ad  investiganda,  et  coercenda  crimina  pro  Tri- 
bunalibus  laicis  promulgatae  sunt,  nihil  detractum  esse  de 
formis,  et  regulis  Canonicis,  quas  proinde  sequi  omnino 
debent  non  modo  in  conficiendo  processu,  ad  quem  spec- 
tant  iiaec  verba  Edicti  diei  5.  Novembris  1831  =  Nihil 
innovetur,  quantum  ad  judicia  ecclesiastica  pertinet  =: 
verum  etiam  in  poenis  decernendis,  quemadmodum  in  ap- 
pendice  ejusdem  Edicti  ita  cautum  est  =  Tribunalia  juris- 
dictionis  mixtae  Clericos  et  Personas  Ecclesiasticas  iis 
poenis  mulctabunt,  quas  secundum  Canones  et  Consti- 
tutiones  Apostolicas  Tribunal  Ecclesiasticum  iisdem  irro- 
garet  =. 

J.  A.  Card.  Sala,  Praefectus. 

J.  Patriarcha  Constantinopolitanus,  Secrelarius. 


Extract  from  the  Circular  of  the  S.  Congregation 
OF  Bishops  and  Regulars,  i  Aug.  1S51.* 

.  .  .  Finally,  to  hasten  the  disposal  of  cases  laid  on  appeal 
before  this  S.  Congregation,  Your  Lordship  will  instruct 
the  members  of  your  court  that  if  within  ten  days  after  be- 
ing informed  of  the  sentence  the  defendant  appeal  to  this 

*The  original  Italian  text  of  the  full  circular,  with  a  Latin  translation, 
is  given  by  the  Acta  S.  S.,  xv.  547  ff. 


238  Appendix, 

S.  C,  and  his  appeal  be  admitted,  and  this  being  made 
known  to  the  Ordinary  with  tlie  usual  order  to  prosecute 
the  appeal  within  the  peremptory  term  of  twenty  days, — 
those  officers  of  the  Curia  must  by  formal  message  i^per 
atto  cursorile)  inform  appellant  tliat  if  he  intends  to  prose- 
cute the  appeal,  he  must  within  the  peremptory  term  of 
twenty  days  appoint  in  this  city  an  advocate  or  attorney 
accredited  in  the  Roman  court;  and  must  moreover  assure 
himself  that  the  advocate  chosen  by  him  do  actually  ac- 
cept the  charge  and,  upon  depositing  the  necessary  sum, 
demand  the  acts  from  the  judge-referee  [giudice  relatore). 
If  appellant  allow  this  term  to  lapse  without  avail,  it  will 
be  taken  for  granted  that  lie  has  waived  the  benefit  of  the 
appeal,  whicli  will  consequently  be  declared  off  by  this  S.  C. 
On  the  other  hand,  when  the  prosecutor  or  representative 
of  the  fiscal  makes  an  appeal  which  is  admitted  by  tlie 
S.  C,  and  notice  thereof  given  to  the  bishop,  the  appellee 
also,  being  now  a  party  to  the  appeal,  must  be  informed  of 
the  appeal  taken  by  the  former  and  admitted  by  the  S.  C. ; 
he  is  at  the  same  time  notified  that  if  he  do  not  within  the 
peremptory  term  of  twenty  days  appoint  his  defender  from 
among  the  advocates  or  attorneys  of  the  Roman  Curia,  it 
will  be  presumed  that  he  declines  to  take  part  in  the  pro- 
ceedings, and  on  motion  of  the  prosecutor  or  the  attorney 
of  the  fiscal  the  proceedings  will  be  carried  through  to 
judgment  and  no  other  appeal  allowed.  The  same  notice 
is  given  to  the  fiscal  procurator  or  his  attorney  when  he 
takes  an  appeal  to  the  S.  C,  as  is  given  to  the  condemned. 
The  notifications,  with  the  proper  certificate  of  the  court 
apparitor,  must  be  laid  before  the  Congregation. 

In  conclusion  it  should  be  remarked  that  the  notification 
of  the  sentence  and  of  the  appeal  being  certified  to  by  the 
court  messenger  must  be  made  part  of  the  records  or  acts, 
which,  in  virtue  of  art.  4  of  the  decree  18  Dec.  1835,  are 
immediately  to  be  supplied  with  a  chronological  index,  and 
sent  to  this  S.  C,  together  with  an  abstract  of  the  proceed- 
ings, with  the  defence,  and  an  exact  copy  of  the  sentence, 


Appendix.  239 

the  original  of  which  remains  with  the  episcopal  court,  to 
be  kept  in  the  criminal  registry  of  the  chancery.  .  .  . 

Fr.  A.  F.  Cardinal  Orioli,  Prefect. 

D.  Patriarcli  of  Constantinople,  Sec'y. 


DisposTTio  Provtsokia 

pro  actis  appellationis  in  causis  criminalibus. 

Sacra  haec  C.  Epp.  et  RR.  pro  certo  habens  qiiod  modi 
procedendi  oeconomice,  ordinati  per  Instructionem  diei  n 
Junii  1880  pro  curiis  ecclesiasticis  in  causis  criminalibus 
quae  clericos  respiciunt,  observari  quoque  debeant  in  actis 
appellationis  quae  apud  ipsum  Sacrum  Consessum  inter- 
ponitur  a  sententiis  ipsarum  curiarum,  opportunam  censuit 
publicationem  sequentis  dispositionis: ' 

I.  Defensor  rei  vel  reorum  eligendus  inter  advocatos  a 
sacris  Congregationibus  approbatos,  praevio  deposito  de 
more,  prudenter  notitiam  sumit  de  restrictu  et  processu 
coram  Judice  relatore. 

II.  Quatenus  vero  ratione  causae  expedire  censeat  Emus. 
Dominus  Card.  Praefectus  injungitur*  defensori  servare 
secretum  cum  jurisjurandi  vinculo. 

III.  Exhibitis  defensionibus  in  scriptis,  eaedem  quatenus 
Emus.  Dom.  Card.  Praefectus  aeque  opportunum  censeat, 
communicari  queunt  procurator!  fiscali  curiae  a  qua,  ut  ille 
si  necesse  esse  crediderit,  in  scriptis  respondeat. 

IV.  De  responso  procuratoris  fiscalis  defensor  sub  debita 
cautela  cognitionem  sumere  potest  coram  Judice  relatore, 
ut  replicare  ultimo  valeat  pariter  in  scriptis. 

V.  Omnino  autem  excluditur  defensoris  et  procuratoris 
fisci  praesentia  in  comitiis  Cardinalium  quando  causa  re- 
solvenda  proponitur. 

'  See  the  Italian  original  in  Acta  S.  S.,  xix.  2g6;  NouvelU  Revue 
Th/ol.,  XIX.,  No.  2,  p.  132,  with  commeniary. 


240  Appendix. 

VI.  Excepta  dispositione  praecedentium  articulorum,  in 
sua  plena  vi  quoad  omnes  partes  ea  omnia  permanent  quae 
S.  C.  constituit  per  decretum  diei  18  Decembris  1835,  per 
literas  circulares  diei  i  Augusti  1851,  et  per  ordinationem 
diei  6  Junii  1847.* 

Ex  aud.  SSmi.  diei  26  Martii  1886. 

SSmus.  Dnus.  Noster  Leo  div.  prov,  PP.  XIII.  audita 
relatione  praesentis  dispositionis  ab  infrascripto  S.  C.  Epp. 
et  RR.  Secretario,  earn  in  omnibus  approbare  et  con- 
firmare  dignatus  est. 

Romae  die  et  anno  quibus  supra. 

J.  Card.  Ferrieri,  Praef. 

Fr,  Ant.  M.  Archp.  Palniyren.,  Secret. 


Ex  Responso  S.  C.  de  Prop.  Fide. 

13  Julii    1886. 

.  .  .  Declarat  S.  Congregatio  nunquam  sese  fore  admis- 
suram  recursum  vel  appellationem  sacerdotum,  qui  ad 
judices  laicos  trahere  ausi  fuerint  vel  clericum  sine  venia 
Ordinarii,  vel  Episcopum  sive  venia  Apostolicae  Sedis,  sive 
in  causa  ecclesiastica  sive  non,  nisi  prius  recursum  ad  civile 
tribunal  interpositum  deseruerint.  Episcopi  vero  juxta 
declarationem  capitis  Cogentes  a  Suprema  Inquisitionis 
Congregatione,  die  28  Januarii  1886,  editam,  possunt  in 
praedictum  clericum  animadvertere  poenis  et  censuris 
ferendae  sententiae,  maxime  suspensione  a  divinis,  servatis 
tamen  servandis,  et  pro  gravitate  causae,  si  id  expedire  in 
Domino  judicaverint.  .  .  . 

J.  Card.  SiMEONi,  Praef. 
D.  Arch  p.  Tyrens.,  Secret. 

'  See  ap.  Acta  S.  S.,  xix.  298  ;  Bizzani,  p.  180. 


Appendix.  241 


De    Appellationibus 

et  Inhibitionibus  concedendis  vel  denegandis. 

Benedictus  Episcopus  Servus  Seivorum  Dei. 
Ad  perpeiuam  rei  memoriam. 

Ad  militantis  Ecclesiae  regimen  niiUo  meritorum  Nos- 
trorum  suffragio,  sed  imperscrutabilis  consilii  aititudine 
evocati,  inter  graves  curas  quas  assidue  pro  Nostro  miinere 
sustinemus,  postrema  ilia  non  est  in  quam  totis  viribus 
Nobis  incumbendum  esse  ducimus,  ut  graves  nimium, 
diuturnae,  nulloque  unquam  tempore  intermissae  Epis- 
coporum  aliorumque  ordinariam  jurisdictionem  habentium 
querelae  adversus  majora  tribunalia  atque  ilia  etiam  Nos- 
trae  Romanae  Curiae,  propositae  tandem  compescaniur. 

§  I.  Intimo  siquidem  animi  Nostri  moerore,  cum  in  mi- 
noribus  adliuc  essemus,  jamdiu  intelleximus  plerosque 
locorum  Ordinaries  conqueri,  sensim  abusum  irrepsisse, 
quod  ad  malitiosam  petentium  suggestionem  a  Patriarchis, 
Metropolitanis,  Sanctae  Sedis  a  latere  Legatis,  et  diversis 
dictae  Romanae  Curiae  judicibus  inhibitiones  sine  delectu 
causae  et  rei  de  qua  igitur  examine,  passim  concedantur. 
Etquamvis  in  more  positum  sit  dictas  inhibitiones  indebite 
expeditas  pro  causae  meritis  revocari  et  aboleri;  remedium 
tamen  inflicto  vulneri  non  satis  esse  dicunt,  cum  interea 
oporteat  Episcopos  aliosque  inferiores  judices  in  ipso 
causarum  et  judiciorum  cursu  otiosos  immorari,  jus  suum 
judicialiter  asserere  et  vindicare,  et  ad  continendos  in 
officio  populos  gravia  saepe  incommoda  et  dispendia 
subire. 

§  2.  E  contrario  Nobis  quoque,  dum  etiam  in  minoribus 
essemus,  superiorum  judicum  responsiones  audire  contigit 
asserentium,  memoratas  querelas  inanes  esse  nee  ulli  in- 
nixas  fundamento,  utpote  ex  hac  unica  re  causam  et 
originem  habentes,  quod  inferioribus  grave  est  obedien- 
tiae  ac  subjectionis  iugum  erga  majora  tribunalia,  ipsisque 


242  Appendix. 

nimis  displicet  sibi  subditis  appellationis  beneficio  suc- 
curri. 

§  3.  Porro  cum  facile  haec  dissidia  componi  et  succre- 
scentia  litium  semina  avelli  possint  ;  si  quae  a  Sacra 
Tridentina  Synodo,  ab  Apostolicis  constitutionibus,  et 
Congregationum  decretis  provide  sancita  sunt,  debitae 
executioni  mandentur:  Nos  idcirco  ad  conservandam 
Ecclesiae  disciplinam  restituendamque  tribunalibus  for- 
mam  eisdem  canonicis  legibus  consentaneam,  pro  credito 
Nobis  Apostolicae  servitutis  Officio  opportune  duximus 
consulendum. 

§  4.  Inliaerentes  itaque  decretis  ejusdem  Sacri  Concilii, 
necnon  Congregationis  Episcoporum,  et  Regularium,  jussu 
et  approbatione  rec.  mem.  dementis  PP.  VIII.  praede- 
cessoris  Nostri  alias  editis  die  16  Octobris  1600;  '  itemque 
aliis  Congregationis  particularis,  jussu  pariter  et  approba- 
tione fel.  rec.  Urbani  PP.  VIII.  similiter  praedecessoris 
Nostri  promulgatis  die  5  Septembris  1626"  eorumque  de- 
clarationibus  nuper  superadditis  a  piae  mem.  Benedicto 
XIII.  etiam  praedecessore  Nostro  in  appendice  Concilii 
Romani/  aliisque  Apostolicis  constitutionibus  hac  de  re 
alias  editis  et  innovatis,  et  praesertim  constitution!  piae 
mem.  Gregorii  XV.,  quae  incipit:  Ifiscruiabili*  sub  datum 
Romae  apud  Sanctum  Petrum  anno  Incarnaiionis  Domi- 
nicae  1622  nonis  Februarii  : 

§  5.  Districte  praecipimus  et  mandamus,  ne  deineeps  ab 
executione  decretorum  dicti  S.  Concilii  Tridentini,  in  om- 
nibus illis  causis  et  negotiis,  in  quibus  executio  hujusmodi 
Episcopis  et  locorum  Ordinariis,  etiam  uti  Sedis  Apostoli- 
cae Delegatis,  ab  eodem  Sacro  Concilio  vel  dictis  Aposto- 
licis Constitutionibus  appellatione  vel  inhibitione  quacum- 
que  postposita  commissa  est,  appellatio  aliqua  in  tribu- 
nalibus praedictis  recipiatur,  vel  inhibitiones,  citationes 
generales  vel  speciales,  cum  commissione  inserta,  monitoria 
et  alia  hujusmodi,  per  quae  dictorum  Decretorum  executio 

'  In  Collect.  Lac.  CC.  Nee.  i.  427.         «  Ibid.  p.  438.         »  Ibid.  p.  529. 
*  Apud  Richter  ct  Schulte,  Cone.  Trid.  p.  539. 


Appendix.  243 

retardetur  aut  Processus  ad  ulteriora  in  eadem  executione 
suspendatur  aut  impediatur,  quoquo  modo  concedantur. 

§  6.  Itaque  a  quibuscumque  mandatis,  piohibitionibus, 
provisionibus  et  siatutis  tam  in  visitatione  quam  extra,  pro 
divino  cultu  conservando  et  augendo  et  praesertim  circa 
ea  quae  observanda  et  evitandasunt  in  celebratione  Missae, 
aul  alio  quovis  modo  respiciunt  execntionem  decreti  S. 
Concilii  sess.  21.  de  Ref.  c.  8,  et  sess.  22.  in  decret.  de  obseriK  et 
nnt.  in  celebrat.  Missae. 

§  7.  Item  a  decretis  cogentibus  clericos  tam  saeculares, 
quam  regulares,  eiiam  monachos,  et  exemptos,  ad  publicas 
processiones,  servata  tamen  forma  constitutionis  san.  mem. 
Pii  v.,  quae  incipit:  Etsi  Mendicaiitium  :  prout  etiam  a  de- 
cretis et  provisionibus  super  praecedentia  inter  personas 
ecclesiasticas  tam  saeculares  quam  regulares  in  eisdem 
processionibus,  vel  assotiatione  defunctorum,  delatione  um- 
bellae,  et  hujusmodi  :  necnon  super  observatione  censu- 
rarum,  etiam  episcopalium,  et  festorum  dioecesis,  juxta  dis- 
positionem  ejusdem    Sacri  Concilii  sess.  25.  de  Regular,  cc. 

12,  13- 

§  8.  Item  in  omnibus  lis  quae  ad  curam  animarum  et 
Sacramentorum  administrationem  quoquo  modo  pertinent, 
et  praesertim  adversus  monitiones,  censuras  aut  alias  pro- 
visiones,  per  quas  parochi  aut  alii  curam  animarum  exer- 
centes  diebus  saltem  dominicis  et  festis  solemnibus  plebes 
sibi  commissas  salutaribus  verbis  pascere  compelluntur 
docendo  ea  quae  ad  salutem  necessaria  sunt,  iuxta  decre- 
tum  Sacri  Concilii  sess.  5.  de  Ref.  c.  2. 

§  9.  Item  adversus  deputationem  vicariorum  etiam  per- 
petuorum  cum  assignatione  congruae,  per  quos  cura  ani- 
marum exerceatur,  quoties  plura  beneficia  curata  ex  dis- 
pensatione  aposiolica  ab  aliquo  obtineantur;  vel  quoties 
eadem  beneficia  curata  cathedralibus,  collegiatis,  seu  aliis 
ecclesiis,  vel  monasteriis,  beneficiis,  seu  collegiis,  aut  piis 
locis  quibuscumque  perpetuo  unita  et  annexa  reperiuntur; 
juxta  praescriptum  dicti  Sacri  QonoW'nsess.  7.  de  Ref.  cc.  5, 
7,  et  juxta  consiituiionem  san.  mem.  Pii  V.  quae  incipit  : 
Ad  exeqitcnduin. 


244  Appendix. 

§  lo.  Item  adversiis  visitationem  beneficiorum  curatorum 
ut  supra  perpetuo  unitorum,  necnon  quarumcumque  eccle- 
siarum  quomodolibet  exemptarum,  prout  etiam  adversus 
decreta  et  provisiones  ab  Ordinario  capiendas,  ut  quae  in 
eis  reparatione  indigent  reparentur,  et  cura  animarum,  si 
qua  illis  imminet,  aliisque  debitis  obsequiis  minime  defrau- 
dentur,  juxta  dispositionem  Sacri  Concilii  eadem  sess.  7  de 
Ref.  c.  8,  et  sess.  21.  c.  7. 

§  II.  Item  a  decretis  seu  mandatis  per  quae  Episcopi, 
etiam  uti  Apostolicae  Sedis  Delegati,  in  ecclesiis  parochi- 
alibus,  aut  baptismalibus,  in  quibus  populus  ita  numerosus 
est  ut  unus  rector  non  possit  sufficere  ecclesiasticis  sacra- 
mentis  ministrandis  et  cultui  divino  peragendo,  cogant 
rectores,  vel  alios  ad  quos  pertinet,  sibi  tot  sacerdotes  ad 
hoc  munus  adjungere  quot  sufficiant  ad  sacramenta  exlii- 
benda,  et  cultum  divinum  celebrandum:  aut  etiam  invitis 
rectoribus  procedant  ad  constitutionem  novarum  parochi- 
arum  cum  assignatione  competentis  portionis,  ubi  ob 
locorum  distantiam  sive  difficultatem  parochiani  sine  magno 
incommode  ad  percipienda  sacramenta  et  divina  officia 
audienda  accedere  non  possunt,  vel  denique  propter  pauper- 
tatem  et  in  caeteris  casibus  a  jure  permissis  deveniant  ad 
uniones  perpetuus  aliorum  beneficiorum  simplicium,  non 
tamen  regularium,  iuxta  dispositionem  Sacri  Concilii  sess. 
21.  de  Ref.  cc.  4,  5,  et  sess.  24  similiter  de  Ref.  c.  13. 

§  12.  Item  a  deputatione  coadjutoruma  ut  vicariorum 
pro  tempore,  vel  aliis  provisionibus  ab  Episcopo  capiendis, 
etiam  tamquam  Apostolicae  Sedis  Delegato,  quando  illite- 
rati  et  imperiti  parochialium  ecclesiarum  rectores  sacris 
minus  apti  sunt  officiis,  cum  assignatione  partis  fructuum 
pro  sufficient!  illorum  victu:  necnon  a  suspensione  atqiic 
etiam  a  privatione  illorum  qui  turpiter  et  scandalose  vivunt 
et  postquam  praemoniti  sunt  in  sua  nequitia  incorrigibiles 
perseverant,  iuxta  praescriptum  ejusdem  Concilii  d.  sess.  21. 
de  Ref.  c.  6. 

§  13,  Item  a  translatione  beneficiorum  simplicium,  etiam 
]urispatronatus,  ex  ecclesiis  quae  vetustate  vel  alias  collap- 


Appendix.  245 

sae  sint  et  ob  eorum  ipopiain  nequeant  instaurari,  vocatis 
iis  quorum  interest,  in  matrices  aut  alias  ecclesias,  cum 
omnibus  emolumentis  et  oneribus:  prout  etiam  a  decretis 
cogentibus  patronos,  rectores,  beneficiatos,  aut  parochianos 
sive  populum,  ad  refectionem  et  instaurationem  ecclesiarum 
parochialium  servata  forma  Sacri  Concilii  d.sess.  21.  c.  7. 

§  14.  Item  a  censuris,  sequestratione  et  subtractione 
fructuum,  aut  aliis  quibuscumque  provisionibus,  pro 
cogendis  ad  residentiam  parochis  caeterisque  omnibus 
quibus  cura  animarum  incumbit,  juxta  decretum  ejusdem 
Sacri  Concilii  sess.  23.  de  Ref.  c.  i. 

§  15.  Item  a  denegatione,  revocatione,  suspensione,  vei 
restrictione  et  limitatione  facultatis  audiendi  confessiones, 
respectu  eorum  qui  parochiale  beneficium  non  obtinent, 
etiam  si  fuerint  regulares,  pro  excipiendis  confessionibus 
saecularium,  juxta  ordinationem  Sacri  Concilii  sess.  23.  c. 
15,  et  Praedecessorum  Nostrorum  constitutiones,  ac  prae- 
cipue  illam  fel.  rec.  Clementis  X.,  quae  incipit:  Superna. 

§  16.  Item  in  illiscivitatib»is  aut  locis,  ubivel  parochiales 
ecclesiae  certos  non  habent  fines  nee  earum  rectores  pro- 
prium  populum  quem  regant,  sed  promiscue  petentibus 
Sacramenta  administrant,  vel  etiam  nuUae  sunt  parochiales, 
a  divisione  sen  distinctione  parochiarum  earumque  ordina- 
tione  sive  institutione  in  titulum  perpetuum,  iuxt'i  decretum 
Sacri  Concilii  sess.  24.  de  Ref.  c.  13. 

§  17.  Item  a  deputatione  vicarii  vel  oeconomi  cum  assig- 
natione  congruae  pro  tempore  quo  vacat  ecclesia  pa- 
rochialis:  prout  etiam  ab  indictione  concursus,  relatione 
examinatorum,  necnon  praeelectione  et  provisione  Episcopi 
in  eodem  concursu  iuxta  definitionem  Sacri  Concilii  eadem 
sess.  24.  de  Ref.  c.  18. 

§  18.  Item  a  mandatis  seu  decretis  inhibentibus  prae- 
dicationem  vel  publicas  lectiones,  aut  coercentibus  vel 
punientibus  quoscumque,  etiam  exemptos  tam  saeculares 
quam  regulares,  qui  in  alienis  ecclesiis  quae  suorum  Ordi- 
num  non  sunt  absque  Episcopi  licentia,  et  in  ecclesiis  suis 
aut  suorum  Ordinum    non    petita   illius  benedictione  aut 


246  Appendix. 

ipso  contradicente  praedicare  praesumpserint;  iuxta  decre- 
tum  Sacri  Concilii  sess.  5.  de  Ref.  c.  2.,  et  sess.  24.  similiter  de 
Ref.  c.  4-,  et  constilutionem  piae  mem.  Grej^orii  XV.,  quae 
iiicipit  :  Inscrutabili,  §  fin.,  una  cum  declarationibns  con- 
teniis  in  constit.  Clementis  PP.  X.,  quae  incipit:  Supenia. 

§  19.  Et  generaliter  in  omnibus  iis  quae  pertinent  ad 
curam  animarum  et  rectam  Sacramentorum  administra- 
tionem,  adversus  visitationem,  correctionem,  coercilionem 
et  qnascumque  alias  provisiones  Episcopi  dioecesani,  etiam 
quoad  exempios  sive  saeculares  sive  regulares,  juxta 
laudatam  const itutionem  Gregorii  XV.,  quae  incipit:  In- 
serutabili. 

§  20.  Item  adversus  quascumque  provisiones  et  decreta 
pro  conservanda  aut  restitucnda  clausura  sanclimonialium, 
aut  pro  correctione  scu  punitione  eorum,  qui  circa  personas 
intra  monasteria  degentes  aut  circa  clausuram  vel  circa  bo- 
norum  adminisirationem  deliquerint.  Prout  eliam  ab  ex- 
amine pro  approbatione  vel  reprobatione  confessariorum 
sive  regularium  sive  saecularium,  quomodocumque  ex- 
emptorum,  et  tarn  ordinariorum  quam  extraordinariorum, 
pro  excipiendis  confessionibus  monialium  etiam  regulari- 
bus  subjectarum.  Itidemque  a  decretis  vel  aliis  quibus- 
cumque  provisionibus  cogentibus  administratores  sive 
saeculares  sive  regulares  quomodolibet  exemptos  ad  red- 
dendam  singulis  annis  rationem  bonorum  ad  monasteria 
sanctimonialium  hujusmodi  pertinentium  :  ac  demum  a 
quibuscumque  decretis  super  amotione  capellanorum, 
sacristarum,  et  aliorum  quorumcumque  officialium  et  mini- 
strorum,  tam  saecularium  quam  regularium,  ipsis  moniali- 
bus  vel  eariim  ecclesiis  inservieuiium.  juxta  dispositionem 
Sacri  Concilii  sess.  25.  de  Regular,  et  Moiiial.  cc.  5,  9,  10.  ser- 
vata  tamen  quoad  regulares  et  exemptos  forma  praedictae 
constitutionis  rcc.  mem,  Gregorii  XV.,  quae  incipit :  In- 
scrutabili. 

§  21.  Item  adversus  pastoralem  visitationem  dioecesis, 
et  praesertim  monasteriorum,  commendatorum,  abba- 
tiarum,  prioratuum,  et  praepositurarum,  in  quibus  non  viget 


Appendix.  247 

regularis  observantia,  necnon  beneficiorum  tarn  curatorum 
quam  non  curcitorum  saecularium  et  regularium  qualiter- 
cumque  conimendatorura,  etiam  exemptoium:  prout  etiatn 
ab  executione  eorum  quae  in  ipsa  visitatione  mandata,  de- 
creta  aut  judicata  fuerint.  Necnon  similiter  a  quibus- 
cumque  decretis,  provisionibus,  etiam  extra  visitationem, 
pro  conservatione  vel  reparatione  ecclesiasiicae  disciplinae, 
quoad  vitam,  mores  et  lionestatem  quorumcumque  cleri- 
corum,  liixum,  commessationes,  choreas,  lusus,  crimina  et 
saecularia  negotia  fugienda  atque  evitanda;  juxta  plura 
decreta  dicti  Sacri  Concilii,  et  praesertim  sess.  6.  de  Ref. 
c.  4;  sess.  13.  c.  i;  sess.  14.  <:.  4;  sess.  21.  cc.  8;  sess.  22.  cc.  1,8; 
et  sess.  24.  c.  10.  ad  formam  tamen  decretorum  S.  C.  Episco 
porum  de  mandato  san.  mem.  dementis  VIII.  editorum 
anno  1600. 

§  22.  Item  a  decretis  cogentibus  praesentatos,  electos,  vel 
nominatos  a  quibusvis  ecclesiasticis  personis,  etiam  nostris 
et  Sedis  Apostolicae  nuntiis,  ad  quaevis  ecclesiastica  bene- 
ficia,  ad  se  subjiciendum  examini  Ordinarii,  antequam  in- 
stistuantur,  confirmeniur  vel  admittantur,  quemadmodum 
cavetur  sess.  7.  de  Ref.  c.  13. 

§  23.  Item  a  denegatione  sacrorum  ordinum  vel  ad- 
scensus  ad  alios  majores;  prout  etiam  adversus  suspensio- 
nem  ab  ordinibus  jam  susceptis  ob  crimen  occultum,  sive 
ex  informata  conscientia,  juxta  dispositionem  Sacri  Concilii 
sess.  14.  de  Ref.  cc.  i.,  3.;  et  sess.  21.  c.  \.\  et  sess.  23.  c.  16. 

§  24.  Item  a  praefixione  termini  intra  qiiem  regularis  Epi- 
scopo  non  subtiitus,  qui  intra  claustra  monasterii  degat  et 
extra  ea  ita  notorie  deliquerit  ut  populo  scandalo  sit  a  suo 
Superiore  puniri  debeat,  ac  de  punitione  ipse  Episcopus 
ciirtior  fieri,  iuxta  decretum  Sacri  Concilii  sess.  25.  de  Regu 
lar.  c.  14.,  et  Const,  fel.  recor.  Clementis  PP.  VIII.,  quae 
incipii:  Suscepti  muneris ;  necnon  adversus  punitionem  et 
correctionem  eorumdem  regularium, qui  circa  personas  in- 
tra septa  degentas  aut  circa  clausuram  ipsam  deliquerint  ; 
juxta  praedictam  constitutionem  Gregorii  XV.  quae  incipit: 
Inscrutabili. 


248  Appendix. 

§  25.  Item  a  censuris  aut  aliis  provisionibus  contra  concu- 
binarios,  et  praesertim  clericos  etiam  retinentes  domi  aut 
extra  mulieres  suspectas,  juxta  praescriptum  Sacri  Concilii 
sess.  24.  de  Ref.  Matrim.  c.  8. ;  et  sess.  26.  de  Ref.  c.  14. 

§  26.  Item  adversus  privatiouem  privilegii  fori,  et  alias 
provisiones  contra  clericos  non  incendentes  in  habilu  et 
tonsura,  et  in  aliis  casibus  aSacro  Concilio  praescriptis  sess. 
14.  de  Ref.  c,  6.;  et  sess.  23.  similiter  c.  6. 

§  27.  Prout  etiam  ab  examine,  approbatione,  vel  repro- 
batione  patrimonii  sacri,  pensionis  ecclesiasticae,  aut  bene- 
ficii,  quoad  clericos  promovendos  ad  sacros  ordines;  juxta 
dispositionem  ejusdem  Concilii  sess.  21.  deRef.  c.  2. 

§  28.  Item  adversus  convocationem  Capituli,  quam  faciat 
Episcopus  ad  aliquid  deliberandum  et  juxta  vota  ipsorum 
capitularium  concludendum,  quoties  de  re  ad  suum  vel  suo- 
rum  commodum  spectante  non  agatur,  juxta  decretum 
Sacri  Concilii  sess.  25.  de  Ref.  c.  6. 

§  29.  Item  a  mandatis  sen  decretis  super  conversione 
tertiae  partis  fructuum  et  quorumcumque  proventuum  et 
obventionum,  tarn  dignitatum  quam  canonicatuum,  persona- 
tuum,  portionum, et  officiorum  in  distributiones quotidianas, 
earumque  divisiones  inter  dignitates  obtinentes  et  caeteros 
divinis  interessentes  in  ecclesiis  tam  cathedralibus  quam 
collegiatis  in  quibus  nullae  sunt  distributiones  hujusmodi 
quotidianae,  vel  ita  tenues  ut  verisimiliter  negligantur; 
juxta  constitutionem  ejusdem  Concilii  sess.  21.  deRef.  c.  3., 
et  sess.  22.  similiter  de  Ref.  c.  3 

§  30.  Item  adversus  exercitium  facultatum  Episcopis 
competentium  super  executione  omnium  piarum  disposi- 
tionum,  tam  in  ultima  voluntate  quam  inter  vivos,  in  casibus 
a  Jure  concessis,  juxta  dispositionem  Sacri  Concilii  sess.  22. 
de  Ref.  c.  8. 

§  31.  Item  a  visitatione  hospitalium,  collegiorum  quo- 
rumcumque, et  confraternitatum  laicorum,  eleemosynarum, 
montium  pietatis  sive  charitatis,et  omnium  piorum  locorum 
quomodocumque  nuncupatorum,  etiamsi  eorum  cura  ad 
laicos  pertineat  aut  exemptionis  privilegio  sint  munita:  ac 


Appendix.  249 

denique  a  cognitione  et  executiorie  eorum  omnium,  quae 
ad  Dei  cultum  aut  animarum  salutem,  seu  paupeies  susten- 
tandos  instituta  sunt,  iuxta  dictum  decretum  Sacri  Concilii 
sess.  22.  de  Ref.  c.  8. 

§  32.  Item  a  decretis  seu  mandatis  cogentibus  adminis- 
tratores  tam  ecclesiasticos  quam  laicos,  etiam  exemptos, 
fabricae  cujusvis  ecclesiae  etiam  cathedralis,  hospitalis,  con- 
fraternitatis,  eleemosynae,  mentis  pietatis,  et  quorumcum- 
que  piorum  locorum,  ad  reddendam  singulis  annis  ipsi 
Ordinario  rationem  suae  administrationis,  nisi  aliud  in  insti- 
tutione  et  ordinatione  talis  ecclesiae  seu  fabricae  expresse 
cautum  fuerit;  iuxta  decreta  Sacri  Concilii  sess.  7  de  Ref.  c. 
15.;  sess.  22.  c.  9.,  et  sess.  25.  c.  8, 

§  33.  Item  a  decretis  compellentibus  notaries  etiam  Apos- 
tolica,  Imperiali  aut  Regia  auctoritate  creatos,  et  scribentes 
in  causis  ecclesiasticis  vel  spiritualibus,  ad  se  subiiciendum 
examini,  eorumque  remotione  vel  suspensione  in  casu  delicti 
vel  imperitiae;  juxta  praescriptum  Sacri  Concilii  dicta  sess. 
22.  c.  10. 

§  34.  Item  ab  erectione  seminarii,  et  taxatione  quarum- 
cumque  dignitatum,  personatuum,  officiorum,  praebenda- 
rum,  portionnm,  abbatiarum,  et  prioratuum  cujuscumque 
Ordinis,  etiam  regularis,  hospitalium,  quae  dantur  in  titu- 
sumvel  administrationem,  et  beneficiorum  quorumcumque, 
etiam  regularium,  etiam  jurispatronatus,  etiam  exemptorum, 
etiam  nnllius  dioecesis,  vel  aliis  ecclesiis,  monasteriis,  hospi- 
talibus,  et  aliis  quibusvis  locis  piis,  etiam  exemptis  annexo- 
rum,ac  quorumcumque  aliorum  ecclesiasticorum  redituum 
seu  proventuum  ad  fabricas  ecclesiarum,  confraternitates  et 
monasteria  omnia,  non  tamen  mendicantium,  pertinentium, 
necnon  decimarum  quacumque  ratione  ad  laicos  atque  etiam 
milites  cujuscumque  militiae  aut  ordinis,  Hierosolymitano 
excepto,  spectantium,  pro  ejusdem  seminarii  manutentione: 
prout  etiam  ab  unione  et  applicatione  aliquot  beneficiorum 
simplicium;  necnon  a  decretis  cogentibus  eos,  qui  scholas- 
terias  obtinent,  vel  quibus  lectionis  vel  doctrinae  munusest 
annexum  ad  docendum  per  se  ipsos  vel  idoneos  substitutes; 


250  Appendix. 

et  generaliter  a  mandatis  et  provlsionibus  quae  quoquo 
modo  respiciunt  curam,  directioaeni  et  administraiioiiem 
seminarii,  plenamque  execiUionem  decreti  editi  a  Sacro 
Concilio  super  coUegio  puerorum  in  singulis  calhedralibus 
instituendo,  sesi.  12.  de  Ref.  c.  18. 

§  35.  Item  a  mandatis,  seu  decretis  cogentibus  oeco- 
nomos,  vicarios  capitulares,  ad  reddendcim  rationem  ad- 
ministrationis  per  eos  gestae  sede  episcopali  vacante,  jiixta 
praescriptum  Sacri  Concilii  sess.  24.  de  Ref.  c.  16. 

§  36.  Item  a  comniinatioiie  excommunicationis  a  Jure 
latae,  et  a  sententia  excommunicationis  latae  ab  liomine, 
suspensionis,  et  inierdicti,  nisi  appellatio  fuerit  interposita 
ex  capite  nullitatis:  et  e  converso  a  sententia  absoluiionis 
ab  eisdepi  censuris  ecclesiasticis. 

§  37.  Et  generaliter  ab  executione  aliorum  quorumcum- 
que  decretorum  dicti  Sacri  Concilii  Tridentini,  Episcopis, 
atque  Ordinariis  locorum  demandata  ab  ipso  Concilio,  etin 
constitutione  fel.  rcc.  Pii  Papae  IV.,  quae  incipit:  Beiiedic- 
tus  Deus. 

§  38.  Volumus,  praecipimus  et  mandamus,  quod  ab  Ar- 
cliiepiscopis,  Patriarcliis,  seu  Prim^uibus,  aliisque  judici- 
bus  ecclesiasticis,  etiam  Nostris  et  Sedis  Apostolicjie  nuntiis, 
vel  de  latere  Legatis,  etiam  Sanctae  Romanae  Ecclesiae 
Cardin&libus,  atque  etiam  Camerae  nostnie  generaii  Au- 
ditore,  Signaturae  Justitiae  Praefecto,  caeterisque  judicibus 
Romanae  Curiae,  eorumque  vicariis,  et  officialibus,  cita- 
tiones  generales  vel  speciales  cum  commissione  inserta, 
monitoria,  et  alia  hujusmodi  cum  inhibitione,  per  quam 
executio  decretorum,  mandatorum  et  provisionum  hujus- 
modi retardetur,  suspendatur,  aut  impediatur  miniuie 
concedantur,  et  quatenus  nunc  aut  imposterum  concessa 
fuerint  nullatenus  inhibeant  atque  ab  Episcopis  aliisque 
locorum  Ordinariis  impune  sperni  possint;  quacnmque 
consuetudine  etiam  immemorabili,  vel  quovis  privilegio,  aut 
stylo  concedendi  inhibitiones  in  causis  pnicdictis,  tametsi 
temporarias,  penitus  excliisis.  Nos  enim  citationes,  et 
monitoria  aliter   quam  ut    praefertur  concessa  vel    impo- 


Appendix.  251 

sterum  concedenda,  nulla  atque  irrita  declaramus  et  pro 
nullis  atque  iiritis  haberi  volumus  et  mandamus:  Decer- 
nentes,  quod  adversus  decreta,  mandata,  et  provisiones 
ejusmodi,  quas  vel  quae  ab  Episcopis  aliisque  locorum 
Ordinariis  fieri  vel  capi  contigerit  in  causis  et  negotiis 
praedictis,  vel  simplex  dumtaxat  et  extrajudicialis  recursns 
per  viam  supplicis  libelli  ad  Nos  et  Successores  Noslios 
Romanos  Pontifices,  vel  respective  et  juxta  causaruni 
naturam  et  qualitatem  appellatio  ad  quos  de  jure,  in  solo 
devolutivo  et  sine  retardatione  vel  praejudicio  legitimae 
executionis,  recipi  et  admitti  possit. 

§  39-  Quoniam  vero  in  hisce  ipsis  negotiis  et  causis  in 
quibus  iiihibitiones  canonicam  executionein  impedientes  aut 
suspendentes  concedi  non  debent,  dari  possunt  casus  qui 
per  ipsum  Sacrum  Concilium  Tridentinum,  vel  juxta  ejus 
niontem  per  Apostolicas  constitutiones  et  Sacrarum  Con- 
gregatioiium  declarationes  aut  communem  Doctorum  sen- 
tentiam,  a  praefaia  generali  regula  de  non  concedendis 
inhibitionibus  eisque  posthabendis  excipiuntur,  quique  ut 
plurimum  non  aliter  quam  prudenli  judicis  arbitrio  secun- 
dum particuiares  facti  circuinstantias  aestimari  possunt: 
hinc  Nos,  ne  sub  ejusmodi  praetextu  inhibitiones  ut  supra 
prohibitae  vulgo  et  sine  uilo  delectu  etiam  in  casibus  non 
exceptis  concedantur:  Statuimus  et  mandamus,  quod  in 
dictis  causis  et  negotiis  superius  expressis  Metropolitani, 
Patriarchae,  Primates aliique  judices  praedicti  et  praeseriim 
Camerae  nostrae  generalis  Auditor  ejusque  Locumtenentes, 
et  Signaturae  Juslitiae  Praefect us  ejusque  Auditor,  ad  quos 
in  contingenti  casu  pro  obtinenda  inhibitione  recursum 
haberi  contigerit,  etiamsi  asseratur  casum  ilium  a  Sacro 
Concilio,  vel  Apostolicis  conslitutionibus  quacumque  de 
causa  exceptum  esse:  nihiiominus  literas  citatorias  vcl 
monitorias  cum  inhibitione  hujusmodi  non  concedant,  nisi 
prius  ex  facti  circumstantiis  in  suppiici  libello  a  parte  re- 
currente  clare  ac  dilucide  exponendis  et  cum  aliquo  docu- 
ment© semiplene  saltern  verificandis,  eisdem  summarie 
apparuerit  casum  ilium  esse  de  exceptis  et  propterea  Epii;- 


252  Appendix. 

copo  vel  Ordinario  loci  inhibendum  esse  ne  ad  ulteriora 
procedat.  Tuncenim  et  non  alias,  et  postquam  ipsi  judices, 
quorum  conscientiam  hac  in  parte  oneramus,  super  dicti 
supplici  libello  manu  sua  resciipserint  quod  inhibitio  con- 
cedi  potest,  libellusque  cum  rescripto  ejusmodi  in  actis 
productus  fuerit  diligenter  ibidem  custodiendus  et  asser- 
vandus,  liceat  eorum  notariis  sive  actiiariis  literas  citatorias 
cum  dicta  inliibitione  expedire  et  parti  recurrenti  tradere, 
ita  tamen  ut  in  earum  calce  expresse  adjiciatur  sequens 
clausula:  "  Nos  enim,  attenlis  juribus  et  supplici  libello 
Nobis  praesentatis  atque  in  actis  exhibitis,  sic,  ut  prefertur, 
inhibendum  esse  speciali  rescripto  mandavimus."  Alias 
literae  ejusmodi  sine  tali  clausula  nullam  vim  inhibendi 
habeant  in  casibus  praedictis. 

§  40.  Et  nihilominus  si  notarii  sine  dicto  speciali  rescrip- 
to super  supplici  libello  aut  sine  productione  illius  in  actis 
aut  sine  praedicta  clausula  citationes  ullas  aut  monitoria 
cum  inhibitione  sub  quociimque  praetextu  seu  colore  ex- 
pedire ac  tradere  praesumpserint,  etiamsi  illae  aut  ilia  a 
judice  subscripta  fuerint,  poenam  infamiae  et  perpetuae  in- 
liabilitatis  ad  officium  notarii  in  causis  ecclesiasticis  exer- 
cendum,  et  quoad  illos  Camerae  Nostrae  generalis  Audi- 
toris,  aut  aliorum  Romanae  Curiae  judicum  superius  ex- 
pressorum  etiam  quinquaginta  ducatorum  auri  de  Camera, 
pro  una  medietate  Camerae  Nostrae  Apostolicae  et  pro 
alia  ipsi  parti  recurrenti  et  in  causa  interesse  habenti,  sin 
minus  alicui  ex  locis  piis,  arbitrio  Nostro  Nostrorumque 
successorum  destinando,  applicandam  ipso  facto  incurrant. 

§  47.  Ad  haec,  similiter  inhaerentes  dispositioni  ejusdem 
Sacri  Concilii  sess.  7.  de  Ref.  c.  14.,  et  sess.  14.  c.  5.,  necnon 
etiam  decreto  piae  mem.  Benedicti  XIII.  hac  in  re  promnl- 
gato  inter  ejus  additiones  ad  decreta  Urbani  Papae  VIII. 
in  appendice  ad  Concilium  Romanum,  volumus  et  manda- 
mus quod  clerici  saeculares  aut  regulares  extra  monaste- 
rium  degentes  quomodolibet  exempti  in  civilibus  causis 
mercedum  et  miserabilium  personarum,  etiamsi  certum 
judicem  a  Sede  Apostolica  deputatum  in  partibus  liabeant : 


Appendix.  253 

in  aliis  vero,  si  ipsum  judicem  non  habuerint,  coram  loco- 
rum  Ordinarjis  tamquam  ab  ipsa  Sede  delegatis  conveniri 
in  prima  instantia,  et  jure  medio  ad  solvendum  debitum 
cogi  possint. 

§  42.  Quo  vero  ad  -personas  non  exemptas,  inhaerendo 
similiter  dispositioni  ejusdem  Sacri  Concilii  sess.  13.  de  Re/, 
c,  I.,  et  sess.  22.  c.  7.,  et  sess.  24.  c.  20.  necnon  supradiclis  de- 
cretis  generalibus  Congregationis  Episcoporum  editisanno 
1600  cum  novissimis  additioiiibus  seu  declarationibus  piae 
mem,  Beiiedicti  XIII.  in  appendice  Concilii  Romani:  Volu- 
mus,  statuimus  et  mandamus  quod  causae  omnes  tam 
civiles  quam  criminales  ad  forum  ecclesiasticum  pertinen- 
tes,  exceptis  privilegiatis  quae  ex  eodem  Concilio  vel  alias 
juxta  canonicas  sanctiones  apud  Nos  et  Sedeni  Apostolicam 
tractari  possunt  aut  debent,  coram  Ordinariis  locorum 
dumtaxat  in  prima  Instantia  cognoscantur,  neque  a  Metro- 
politanis,  Patriarchis,  aut  Primatibus,  aliisque  judicibus 
ecclesiasiicis,  etiam  Nostris  et  Sedis  Apostolicae  nuntiis 
vel  de  latere  legatis,  aut  Camerae  Nostrae  general!  Audi- 
tore,  et  caeteris  quibuslibet  Curiae  Nostrae  judicibus  ad  se 
avocari  vel  aliis  committi  possint,  nisi  per  viam  legitimae 
appellationis  et  in  casibus  ut  supra  non  prohibitis  ad  ip- 
sorum  tribunalia  deferantur. 

§  43.  Appellationes  autem  non  recipiantur  neque  inhibi- 
tiones  vigore  illarum  concedantur,  nisi  prius  constiterit 
quod  nedum  per  ligitimam  personam  et  intra  legitima  tem- 
pera vere  appellatum  fuerit;  sed  eiiam  quod  appellatum 
fuerit  a  sententia  definitiva  vel  habente  vim  definitivae,  aut 
a  gravamine  quod  per  definitivam  sententiam  reparari  non 
possit:  idque  per  publica  documenta  quae  realiter  in  aciis 
exhibeantur;  tunc  enim  et  non  antea,  judici  ad  quem  ap- 
pellatum fuerit,  in  causa  se  intromittere,  citationes  et  inhi- 
bitiones  concedere  liceat ;  dummodo  tamen  concedantur 
cum  inscriptione  tenoris  sententiae  aut  decreti  definitivi 
seu  vim  definitivae  habentis,  vel  damnum  per  definitivam 
irreparabile  inferentis  ;  alias  citationes,  processus,  et  inde 
sequuta  qnaecumque  sint  ipso  iure  nulla  atque  impune 
sperni  possint. 


254  Appendix. 

§  44.  Quod  si  appellans  asserat,  sententiae  ant  decreii 
exemplum  authenticum  culpa  judicis  a  quo,  vel  notarii  sive 
actuarii  habere  non  posse,  turn  saltern  copiam  simplicem 
sententiae  seu  decieti  in  actis  producere  teneatur,  ejusque 
tenori  in  literis  inhibitorialibus  inserto  adjicienda  erit, 
prout  adjici  volumus,  et  mandamus,  in  earum  corpore  ex- 
pressa  conditio:  "Quatenus  tamen  tenor  insertus  vere  et  in 
substantialibus  cum  originali  concordet  eodemque  originaii 
praesentes  literae  sint  in  tempore  posteriores,  alioquin 
nullae  et  initae  cense;.ntur ":  Et  si  secus  factum  fuerit, 
inhibitiones  aliter  concessas  nuilatenus  afficiant,  et  notaiii 
sive  actuarii  qui  illas  expediverint  incidant  in  poenas 
superius  expressas. 

§  45.  Cum  vero  a  gravamine  quod  per  definitivam  repa- 
rari  nequit  appellatam  fuerit,  si  quidem  res  sit  de  carcera- 
tione  jam  secuta  cum  mandato  verbali,  non  aliter  expediri 
poterunt  inhibitiones  vigore  appellalionis  quam  constito 
prius  de  ipsa  carceratione  per  depositionem  saltern  duorum 
testium.  Interim  tamen  appellans  in  eodem  quo  reperitur 
carcere  permanebit,  donee  aliter  servatis  servandis  judica- 
tum  fuerit.  Ubi  vero  agatur  de  censuris  jam  prolatis,  vel 
de  comminatione  carcerationis,  torturae,  aut  censurarum, 
observetur  omnino  dispositio  dictorum  decretorum  Congre- 
gationis  Episcoporum  sub  rec.  mem.  Clemente  VIII.,  juxta 
additiones  et  declarationes  piae  mem.  Benedicti  XIII. 

§  46.  Ulterius  in  praedictis  causis  in  prima  instantia  pen- 
dentibus  vel  aliis  superius  expressis  in  quibus  non  admitli- 
tur  appellatio  in  suspensivo,  citationes  quae  expediri  solent 
coram  Cardinali  Signaturae  Justitiae  Praefecto,  vel  ad  ef- 
fectum  comparendi  vel  pro  adeundo  eamdem  Signaturam, 
lametsi  ab  ejus  Auditore  subscriptas,  vim  inhibendi  nuila- 
tenus sortiri  posse  volumus  easque  ad  praedictos  alios 
dumtaxat  effectus,  comparendi  scilicet  vel  adeundi  Signa- 
turam, expeditas  censeri,  non  autem  ad  retardandam  exe- 
cutionem  vel  suspendendum  processum  ad  ulteriora. 

§  47.  Denique  quoad  causas  privilegiatas  quae  ut  prae- 
fertur  in   prima  etiam  instantia  apud  Nos  et  Sedem  Apos- 


Appe7idix.  255 

tolicam  tractari  possunt,  nihil  ex  antique  mutandum  esse 
volnmus,  sed  monitoria  in  iilis  coram  Camerae  Nostiae 
general!  Auditore  vel  ejus  locumtenentibus,  prout  hactenus 
laudabiliter  observatum  est,  expedieuda  esse,  juxta  prae- 
scriptum  Apostolicarum  constitutionum,  et  praesertim  fel. 
rec.  Pauli  V.  Praedecessoris  Nqstri  in  constitutione,  quae 
incipit :  U/iiversi,  necnon  praedictarum  additionum  pi  de- 
clarationum  Benedicti  XIII.,  exceptis  tamen  monitprfisinti- 
mandis  ultra  monies,  in  qiiibus  ad  evitauda  sca«dala  et  liti- 
gantium  incommoda,  volunuis  omnino  renovari  et  observari 
stylum,  qui  olim  in  eo  Iribunali  vigebat,  id  est,  quod  ad 
ejusmodi  mouitoriorum  ejcpeditlonem  non  aliter  procedatur 
quam  oblato  prius  ipsi  Auditori  vel  alter!  ex  ejus  Locumte- 
nentibus coram  quo  monitorium  expediendum  erit  supplici 
libello  universam  facti  speciem  clare  et  dilucide  continente, 
et  praevio  etiam  ejusdem  judicis  rescripto  quod  monitorium 
expediri  possit  penes  causae  notarium  vel  actuarium  dili- 
genter  custodiendo.  Etsi  aliter  quam  praefertur  et  absque 
dicto supplici  libello  ac  special!  judicis  rescriptodicta  moni- 
toria ultra  montes  intimanda  expedita  fuerint,  notarius  sive 
actuarius  et  substitutus  qui  ilia  expediverit  ipso  facto  inci- 
dat  in  poenas  superius  expressas. 

§  48.  Omnia  et  singula  hactenus  a  Nobis  disposita  ad 
rectam  judicioruni  methodum  restituendam  eo  impensius 
ab  omnibus  exacte  custodir!  et  observari  mandamus,  quo 
clarius  constat  hac  nostra  constitutione  non  novas  ferri  sed 
antiquas  instaurar!  leges  piovide  sapienterque  institutas  et 
temporum  injuria  ac  hominum  fraudc  obsoletas,  et  novo 
Pontificiae  auctoritatis  praesidio  communiri  ordinem  pro- 
cedendi  in  causis  jamdiu  praescriptum  superioribus  et  in- 
ferioribus  tribunalibus  a  Sacra  Tridentina  Synodo,  Congre- 
gationum  decretis,  et  Praedecessorum  Nostrorum  Roma- 
norum  Pontificum  constitutionibus,  aliisque  ordinationibus 
Apostolicis.  Ideoque  si  ipsi  judices,  omni  semoto  ut  par 
est,  humanae  cupiditatis  affectu  prae  oculis  solum  liabue- 
rint  quae  tam  mature  tamque  saluberrimo  sunt  constituia 
ftordinata  consilio,  facile  eorum  quilibet  agnoscet  quae  sui 


256  Appendix. 

et  quae  alien!  ministerii  partes  esse  debeant  in  admittendls 
ac  respective  rejiciendis  causarum  appellationibus  et  inhi- 
bitionibus  :  atque  ita  fiet,  ut  non  solum  unicuique  in  suo 
ordine  debita  jurisdictionis  et  auctoritatis  praerogativa  ser- 
vetur,  sed  etiam  ut  exstinctis  prorsus  ac  radicilus  avulsis 
omnium  contentionum  et  discordiarum  seminibus  mutuo 
cliaritatis  vinculo  tribunalia  socientur,  et  inter  ilia  recte 
iigendi  disciplina  Christiano  populo  utilis  et  necessaria  re- 
stituatur. 

§  49.  Demum  ut  exemplo  Nostro  omnes  praemissorum 
executioni  caute  et  pro  viribus  incumbant,  et  ut  praesertim 
notariis,  tabellionibus  et  eorum  actuariis  et  substitutis  om- 
nis  contraveniendi  ansa  praecidatur,  volumus  et  expresse 
mandamus  processus  et  acta  causarum  in  Nostra  Romana 
Curia  coram  quovis  judice  pendentium  ac  inhibitiones,  ap- 
pellationes,  monitoria  aliasque  citatoriales  et  inliibitoriales 
literas,  quas  ab  iisdem  notariis  eorumque  substitutis  sci- 
entibus  vel  insciis  judicibus  vel  alias  qnomodolibet  in  pos- 
terum  expediri  contigerit,  sedulo  recognosci  et  examinari 
per  fide  dignas  personas  a  Nobis  opportune  deputandas, 
quae  si  deprehenderint  easdem  inhibitiones  contra  liujus 
constitutionis  formani  et  ad  subterfugienda  Ordinariorum 
et  Episcoporum  judicia  quaesito  gravaminis  colore  fuisse 
perperam  concessas  et  expeditas,  in  eosdem  notaries  et  sub- 
stitutes canonicis  poenis  aliisque  a  Nobis  supra  expressis 
severe  pro  modo  culpae  animadvertant. 

§  50.  Decernentes  has  praesentes  literas  semper  firmas, 
validas  et  efficaces  existere  et  fore,  suosque  plenarios  et 
integros  effectus  sortiri  et  obtinere,  ac  ab  illis  ad  quos  spec- 
tat  et  pro  tempore  quandocumque  spectabit  inviolabiter 
et  inconcnsse  obseivari:  sicque  et  non  aliter  in  praemissis 
per  quoscumque  judices  ordinarios  et  delegates,  etiam  cau- 
sarum Palatii  Apostolici  Auditores,  ac  Sanctae  Romae  Ec- 
clesiae  praefatae  Cardinales,  etiam  de  latere  Legates,  et 
ejusdem  Sedis  Nuntios,  aliosve  quosiibet  quacumque  prae- 
eminentia  et  potestate  fungentes  et  functuros,  sublata  eis 
et  eorum  cuilibet  quavis  aliter  judicandi  et  interpretandi 


Appendix.  257 

facultate  et  auctoritate,  judicari  et  definiri  debere,  ac  irri- 
tum  et  inane  si  secus  super  his  a  quoquam  quavis  auctori- 
tate scienter  vel  ignoianier  contigerit  attentari. 

§  51.  Non  obstantibus  praemissis,  ac  quatenus  opus  sit, 
Nostra  et  Cancellariae  Apostolicae  reguia  de  jure  quaesito 
non  .tollendo,  aliisque  constitutionibus  et  ordinationibus 
Apostolicis,  necnon  quibusvis  etiam  juramento,  confirma- 
tione  Apostolica,  vel  quavis  firmitate  alia  roboratis  statutis 
et  consuetudinibus  ac  usibus  et  stylis,  etiam  immemorabi- 
libus,  privilegiis  quoque,  indultis  et  Literis  Apostolicis, 
praefatis  aliisque  quibuslibet  judicibus,  curiis,  tribunalibus, 
et  personis,  etiam  quantumvis  sublimibus  et  specialissima 
mentione  dignis,  sub  quibuscumque  tenoribus  et  forniis  ac 
cum  quibusvis  etiam  degoratoriarum  derogatoriis  aliisque 
efficacioribus,  efficacissimis  et  insolitis  clausulis  irritanti- 
busque  decretis,  etiam  motu,  scientia,  et  potestatis  plenitu- 
dine  paribus,  ac  consistorialiter,  et  alias  quomodolibet  in 
contrarium  praemissorum  concessis,  editis,  factis,  ac  pluries 
iteratis,  et  quantiscumque  vicibus  approbatis,  confirmatis 
et  innovatis:  Quibus  omnibus  et  singulis,  etiam  si  pro  il- 
lorum  sufficienti  derogatione  de  illis  eorumque  totis  teno- 
ribus specialis,  specifica,  expressa  et  iiidividua  ac  de  verbo 
ad  verbum,  non  autem  per  clausulas  generales  idem  impor- 
tantfes,  mentio  seu  quaevis  alia  expressio  habenda  aut 
aliqua  alia  exquisita  forma  ad  hoc  servanda  foret,  tenoies 
hujusmodi,  ac  si  de  verbo  ad  verbum  nihil  penitus  omisso 
et  forma  in  illis  tradita  observata  exprimerentur  et  insere- 
rentur,  praesentibus  pro  plene  et  sufficietur  expressis  et  in- 
sertis  habentes,  illis  alias  in  suo  robore  permansuris,  ad 
praemissorum  effectum  hac  vice  dumtaxat  specialiter  et 
expresse  derogatum  esse  volumus,  caeterisque  contrariis 
quibuscumque, 

§  52.  Ut  autem  eaedem  praesentes  literae  ad  omnium 
notitiam  facilius  deveniant,  volumus  illas  seu  earum  exem- 
pla  ad  valvas  ecclesiae  Lateranensis  et  basilicae  Principis 
Apostolorum  necnon  Cancellariae  Apostolicae  Curiaeque 
Generalis  in  Monte  Citatorio,  ac  in  Acie  Campi  Florae  de 


258  Appendix. 

Urbe,  ut  moris  est,  affigi  et  publicari  sicque  publicatas  et 
affixas  omnes  et  siiigiilos  quos  illae  concernunt  perinde 
arctaie  ac  afficere,  ac  si  unicuique  eorum  nominatim  et 
personaliter  intirnatae  fuissent:  ipsarum  autem  literarum 
transumptis  seu  exemplis  etiam  impressis,  manu  tamen 
alicuius  notarii  public!  subscriptis  et  sigillo  personae  in 
ecclesiastica  dignitate  constitutae  munitis,  eamdem  proi- 
sus  fidem  tarn  in  judicio  quam  extra  illud  ubique  locorutti 
haberi,  quae  haberetur  ipsis  praesentibus,  si  forent  exhi- 
bitae  vel  ostensae. 

§53.  NuUi  ergo  omnino  hominum  liceat  banc  paginam 
Nostri  decreti,  consiitutionis,  declarationis,  annullationis, 
admonitionis,  et  voluntatis  infringere,  vel  ei  ausu  temerario 
contraire;  si  quis  autem  hoc  attentare  praesumpserit,  in- 
dignationein  Omnipotentis  Dei  ac  Beatorum  Petri  et  Pauli 
Apostolorum  ejus  se  noverit  incursurum. 

Datum  Romae  apud  Sanctam  Mariam  Majorem  anno  In- 
carnationis  Dominicae  millesinio  septingentesimo  quadra- 
gesimo  secundo,  tertio  Kal.  Aprilis.  Pontiticatus  Nostri 
Anno  II. 

P.  Card.  Pro-Datarius. 
P.  Card.  Passioneus. 
Visa  de  Curia. 

N.  Antonellus. 
J.  B.  Eiigenius. 
Registrata  in  Secretaria  Brevium. 

Publicata  de  18  Aprilis  ejusdem  anai. 


INDEX. 


The  references  are  to  pag^es  and  notes,  the  latter  being  indicated  by  superior 
figures.     The  main  places  are  distinguished  by  bold  type. 


Abolition,  104.  190  ff. 

Absence,  see  Contumacy. 

Absolution  from  censures,  186. 

Abstract,  see  Auditor. 

Accomplices,  98  flf. 

Account-books,  124.  147. 

Accusation,  see  Charge  ;  Pro- 
cedure. 

Accused,  the,  63  ff..  7/  flf. ;  cita- 
tion, examination,  71,  96  f., 
148.  168  ;  oath,  98 ;  confession, 
98  flf ;  representation,  77,  169. 

Acquittal,  140  ff. 

Acta  Satictae  Sedis,  38,  44,  55', 
59'.  62,  64-^  97,  112',  138',  142*, 
I49». 

Acts  of  the  court.  52,  58*,  89, 
147*.  172,  237■^  239  See  also 
Record. 

Actuary,  54,  57,  59',  6o^  See 
also  Clerk 

Address,  false,  42 ;  imperfect, 
124. 

Administrative  acts,  measures, 
6.  80  f.,  165,  180.  See  also 
Extrajud. 

Administrator  of  diocese.  29*. 

Admissions,  see  Confession. 

Admonitions,  canonical,  8i  flf., 
144  ff.,  163;  paternal.  78,  150, 
163*;  legal,  formal,  i5off.;  end, 
145;  conditions.  146;  object, 
149;  qualities.  152. 

Advocate,  61, 71,74  ff.,  169, 171  ff.; 
A.  approval.  75  ;  oatli.  75,  172  ; 
duties,  75  ff. ;  fees,  71,  76,  195  ; 
layman,  74  f. ;  in  contumacy, 
137  ;  in  appeal.  185.  See  also 
Defence ;  Final  pleading. 


Affidavit.  183. 

Affinity,  113.  133. 

Ageof  judoe.  48;  defendant,  99; 

witnesses,  103  f. 
Allegata  et  probata,  \  128,   169, 
Allegations,  j       171'. 

Alibi,  132. 

America,  sec  United  States. 
Analecta  Juris  Pontificii.  43*. 
Anonymous  letters,  complaints, 

70.  166. 
Aposioli.    )    J,  ,     J,  , 
Apostles,  }  i«2  ,  184  . 

Apparitor,  61  f. 

Appeal,  50,  60,  90,  loi,  145, 
17 B  ff. ;  judicial,  extrajud., 
175  f. ;  instances,  31  ff.,  39  ff., 
178;  restrictions,  178;  effects, 
179  ff. ;  sham  A.,  179';  proce 
dure,  182  ff.  ;  terms,  182,  236; 
co.sts,  195;  per  salt  urn,  38*; 
from  delegate,  33  f. ;  from  in- 
junction, 153;  before  S.  C, 
234  ff. 

Appearance,  see  Citation. 

Appellare.  appellatio.  176'. 

Appellate  competency,  38  ff.  :  A. 
judge,  38,  175*;  third  A.  court, 
40. 

Appellee.  175*. 

App/oval  of  advocate.  75. 

Arbiters.  33.  134  f.  ;  A.  compro- 
missarii,  135*.    See  also  luors. 

Arbitrary  terms.  128. 

Arbitratores.  135'. 

Archbishop.  29.  39".  See  also 
Metropolitan. 

Architects,   122'. 

Archives,  58*,  147. 


26o 


Index. 


Archivist,  58^ 

Arrest  of  judgment,  igo*";  pro- 
ceeding, 192  f.  See  also  De- 
prehensio. 

Articuli  et  positiones^  1 29'. 

Assassination,  100'. 

Assessors,  51. 

Attentata,  /  ,„_   mi 

Attentats,   f  ^77,  7«^ 

Attorney,  76  ff.,  120  ;  A.  general, 
64'. 

Auditor,  52 ff.,  120";  impartiality, 
charity,  97 ;  layman.  56 ;  recu- 
sation,   133'°,  136';    abstract 
53",   59'»  ^5.    118,   120,  165^. 
170,  237^  239;  A.   in  appeal 
186;  in  matrimonial  case,  54' 

Auditorium  metropoliticutn,  39'' 

Authenticity,  I22^ 

Autographa,  184. 

Avoidance,  plea  in,  169. 

Baltimore,  II.  PI.  C,  29*.  39". 
III.  PLC,  3, 39\  54', 

59',  65^  69.  75,  119,  148'^  196. 
Bar,  a  clerical,  76;   plea  in  B., 

130. 
Bench,  the  judges',  133,  172. 
Benedict  XIII.,  23,  jj,  98,  196. 
Benedict  XI F.,  22  f.,  40.  1 80.  Cst. 

Ad  militant  is,  241  ff. 
Benefices.  181. 
Benefit  of  the  clergy,  see  Privi- 

legitim  fori. 
Beneplacitum,     ad,  suspension, 

161. 
Bias  of  auditor.  97  ;  of  judge, 

132. 
Bill  of  complaint,  67. 
Bishop  as  ordinaiy,  28,  31,  38, 

50  f. ,  69;   as  delegate  apost., 

31  ;  duties  in  criminal    cases, 

65  f. ;  pardon,  192  ;  trial  of  B., 

37. 
Btzzart  's  collectanea,  43'. 
Blind  witnesses,  103. 
Books  of  accounts,  124. 
Boundaries  of  parishes,  181. 
Buildings,  eccl.,  181. 
Burden  of  proof,  95,  127. 
Burial,  Christian,  194. 


Calumnia,  i79\  196  f. 

Canada,  41''. 

Cancellings,  124, 

Canon  and   Civil  criminal  law, 

17  ff. 
Canonry,  41, 
Capital  punishment  (sentence), 

I8^  78,  loi,  104,  138,  190^ 
Cardinal's  jurisdiction,  29, 
Casting  vote,  51. 
Caution  and  discretion,  147,  153, 

163,  166. 
Censures,   72,    145',  154,   180  ff. 

Absolution,    186;    execution, 

193- 
Challenge  of  witnesses,   121  f., 

169  ;    of    auditor,     133'"  ;     of 

judge,  132.     See  also  Recusa- 
tion. 
Chancellor,  55,   57,  59',  65,  74; 

layman,  59;  recused,  136. 
Chancery,  154, 164, 172,  175.    See 

also  Record. 
Change  of  venue,  47'. 
Charge  (accusation),  20,  65*,  67, 

69   f.,   72,  85,  95,   166  f.,   192; 

new  C,  173. 
Church  and  State,  17  ff.,  22. 
Church  records,  124. 
Circumstantial  evidence,  125  f.  ; 

conviction,    127  ;    exceptions, 

131.     See  also  Presumptions. 
Citation  of  accused,  32,  46^  61, 

72,89,  133.  I36\  153,  155',  168, 

172  f.  ;  of  witnesses,  inf. 
Clauses,  legal,  29  f.,  87,  89^  90, 

140,  141,  158,  160,  178'. 
Cleric   in   civil   court,  167,   223, 

240. 
Clerk,  55,  57,65,  96,  98,  122,  163; 

layman,  58  ;  fees,  59  ;  recused, 

136, 
Close,  right  to,  173. 
Coadjutor  bishop,  29,  37. 
Cognitio  snmmaria  facti,  53",  69. 

See  also  Inquest. 
Collections  of  Roman  decisions, 

43'-  '-  "• 
College  of  judges,  50  f..  133  fi.» 
172,  174;  of  judges-delegate, 
33  ;  of  auditors,  56. 


Index. 


261 


Collusion,  115. 

Covimmtators,  5. 

Commissio  Investigationis,  51', 
56',  75,  151,  171'.  Instr.  S.  C, 
226  ff. 

Commission,  general  and  spe- 
cial, 32.  66,  68  f.,  120,  168,  186. 

Common  law,  4,  37',  47',  52".  91", 
94  f.,  98.  102,  147',  170',  185*, 
190'. 

Communications,        privileged, 

i'3- 
Commutation  of  sentence,  192. 
Comfjarison  of  writings.  123. 
Comf>etency,    judicial,    37    ff. ; 

of    judge,   98 :  of    witnesses, 

102  ff. 
Complaints,  190.  See ahoQ\\2i\%t:, 

Querela. 
Conif>ounding  of  felony,  190*. 
Compromise,  see  Transaction. 
Conclusion  of  auditor's  inquest, 

96,    114,    119,    170;    of    final 

pleading,  173. 
Conclusiones  procuratoris  fisc, 

120. 
Conditions  for  trial,  105  ff. ;  pre- 
vious inquest,   146  f.  ;  canon. 

admonitions,  146;  injunctions, 

152  ff. 
Confession,    judicial,   extrajud., 

71,  96   ff. ;    requisites,  99  ff . ; 

effect,  101  :  obligation,  loi. 
Confrontation,  73,  120  ff. 
Congregations,   Roman,  42  ff.  ; 

decisions,  23  ff.,  27,  90,  140; 

procedure,  142,  234  ff.;  costs, 

196. 
Conjectures,  see  Indicia. 
Consanguinity,  113.  133. 
Contempt  of  court,   see  Contu- 
macy. 
Contestatio  delicti,  3i»,  95,  133. 
Continent  proceeding,  )  ^^^ 
Continent  I,  in,  ^        >   "y 

Contumacia,  (  .Oq  icLt»-  nro' 
Contumacy,  ^  cedur^ise  ff." 
Conviction   by   testimony,    104, 

107  ;  by  circumst.  evid.,  127. 
Copies  (transcript)  of  acts,  sen- 


tence, defence,  injunction,  etc., 

58^  61, 142, 168, 172, 174, 184, 
185',  236^ 

Correcting  statements,  75,  loi, 
109,  118,  169. 

Correction,  corrective  measures, 
17,  78,  140.  145',  148',  149. 151. 
167,  182. 

Correspondence,  124. 

Costs,  judicial.  193  ff. 

Counsel,  see  Advocate. 

Counter-evidence,  83,  85',  185. 

Credibility  of  witnesses,  102  ff., 
105. 

Crime,  occult  or  public,  100, 
158  ff. 

Crimina  excepta,  100'. 

Criminal  law,  formal  and  mate- 
rial, 16,  17  ft". 

Cross  examination,  115.  119*. 

Cum  Magnopere,  50',  32',  55',  75, 
"JT,  89,  112*,  129,  142*,  171', 
172*,  174',  186';  text,  199  ff. 

Cursores,  62. 

Custom,  16,  22,  27,  52',  56.  60. 
69.  112,  185. 

Deaf  and  dumb,  48, 103. 

Dean  of  chapter,  41'. 

Death  of  delegator,  32  ;  of  dele- 
gate, 33. 

Decorum,  clerical.  146. 

Deer  eta  S.  C.  Epp.  on  appeals, 
234  ff. 

Decretals,  5,  21,  48',  72. 

Decretum  Gratiani,  21. 

Default,  in,  137*,  139,  178,  185. 

Defence,  71  ff..  85,  119,  148; 
manner,  75  f. ;  final  pleading, 
142,  172  ff. ;  pleas,  169;  pro- 
ceedings, 127  ff.,  168. 

Defendant.  64,  84. 

Defender,  72.  See  also  Advo- 
cate.    D.  matrim.,  196. 

Degtadation,  93,  138,  190',  194. 

Delays,  'see  Dilationes,  Terms. 

Delegation,  a  jure  et  ab  homine. 
30  ff. ;  special  and  general, 
official  and  personal.  31* :  sub- 
delegation,  32;  extent,  33  ;  ap- 
peal, 33;  joint  D.,  33. 


262 


Index. 


De  Montaiiit.  Decreta  S.  C. 
I  mm.,  43'. 

Denuniiatio,  27,  69  f.,  83  ;  evan- 
gelical, I45^ 

Deposition  from  office,  138,  194. 

Depositions,  see  Witnesses. 

Deprehensio,  see  Forum. 

Devolution,  177  ff. 

Dignitas,  41''. 

Dilationes,  88,  127'',  129'.  See 
also  Terms. 

Dtsciplina,  6,  17. 

Documents  (instruments,  writ- 
ingsj.  35.  61,  58^  89,  93;  in 
evidence,  123  flf .  ;  D.  authen- 
tic, genuine,  public,  private, 
123^  fT.     5^^  a/jY?  Signature. 

Domicile,  44  f. 

Doininus  litis,  jj. 

Duplication  132'. 

England,  4I^  63. 

Enmity,  104,  133,  136. 

Erasures  in  documents,  124. 

Evidence,  judicial,  54,  91  flf.; 
extrajudicial,  114,  122  ;  kinds, 
92,  106  f. ;  weight,  92  f. ;  pre- 
valence, 94;  object,  94  f.;  time, 
95  ;  entry,  96.  E.  of  personal 
knowledge,  107  ;  opinion,  108  ; 
hearsay,  108  f. ;  rumor,  109: 
expert.  121  ;  documentary, 
122;  circumstantial,  125;  tak- 
ing evidence,  168  flf. ;  new  evi- 
dence, 170.  See  also  Wit- 
nesses. 

Ex  abrupt 0  proceeding,  89". 

Ex  infurviata  conscientia.  see 
Tridentine  suspension. 

Ex  officio  inquiry,  70,  83  fT. 

Examination  of  accused,  96  flf., 
148,  163  ;  of  witnesses,  1 16  flf. 

Exceptional  crimes,  100,  105. 

Exception's,  \\2P   flf-      See   also 

Exceptions,  J      Plea. 

Excommunication,  33.  49,  104. 
112,  138,*  144,  145,'  190'^ 

Execution  of  sentence,  130,  180, 
194  ff ;  stay,  I90^  193  f. 

Exercises,  spiritual.  80. 

Expensae,  \g6*.     See  a/so  Costs. 


Experts,  121,  123,  147. 

Extrajudicial  acts,  27,  80,  144 
flf.,  176;  confession,  98;  ap- 
peal, 175  f. 

Extraordinary  procedure,  87 ; 
means  of  redress,  187  flf. 

Faculties,  written,  124. 

Faina,  63,  108;  inquisitio,  52°. 

Familiarity,  49,  133. 

Fatalia,  183". 

Fees,  fines,  see  Costs. 

Fictitious  contumacy,  137°; 
names,  164. 

Fisc  of  diocese,  64. 

Fiscal,  see  Procurator,  Promotor. 

Formalitiesof  trial  (essential  and 
accidental),  25,  48,  71,  87  flf.  ; 
admonitions,  151  ;  appeal,  183. 

Forms  of  procedure,  78  ff. 

Forum,  43  ;  domicilii,  44  f. ;  de- 
licti, deprchensionis,  46 ;  prae- 
ventionis,  46' ;  prorogat.,  47  ; 
external,  internal,  18,  194. 

Friendship,  133. 

Genuineness    of    documents, 

122=  flf. 
Giudice  d'istruzione,  52°  ;  g.  re- 

latore,  239. 
Gloss.  49^*,  99  f.,  103,  no,   133", 

I36\  HI",  I78^  185s  189'. 
"  Grace,"  138",  140*. 
Gratiani  decretum,  2 1 . 

Handwriting,  123  f. 
Hearsay  evidence,  108  f. 
Heresy,  100';  heretics,  104. 
History,  modern,   of   canonical 

procedure,  21  flf.,  23". 
Holy-days,  143. 
Husband  and  wife,  113. 

Idiots,  103. 

Illiterate,  48. 

Immunity,  eccl.,  43.  60",  143. 

Impartiality,  see  Recusation. 

Impuberals,  103. 

Impunity,  112. 

Indications,   \  ,^,   .^n    „_    ,.- 

Indicia.  \  '°5.  'oS,  125,  145- 


Index. 


263 


Indictment  by  jury,  147*. 

Inducements  to  confess,  100. 

Infamia  juris  et  facti,  49,  104. 

Infamy,  perpetual,  190'. 

Inferences,  see  Presumptions. 

Informations,  146  ff.,  166  ff, 

Inhibitieaes,  177*. 

Injunctions,  ca-nonical,  144. 147, 
151,  152  ff. :  mode,  153  f., 
requisites,  154:  copy,  154'; 
term,  155. 

Inquest  (preliminary,  previous, 
summary),  53°,  69  ff.,  117,  146, 
147',  *,  166  f.;  auditor's,  165 
ff. ;  sheriff's,  coroner's,  147' ; 
additional,  174. 

Inquiry  (judicial,  extrajud.,  pri- 
vate), 15  f.,  27,  53.67,  85,  99, 
146,  i66  f.,  190  f. 

Inquisitio  pro  notitia  curiae,  53°, 
148';  pro  inform,  jitdice,  de 
fama,  probatione,  53". 

Inquisitorial,  see  Procedure. 

Insane,  the,  48.  103. 

Inspection,  judicial,  extrajud., 
122. 

Instances,  see  Appeal. 

Instruct io  S.  C.  Epp.  1880,  3. 
5,  23,  27.  85  ff. 

Instructor  aclorum,  53",  55' ;  I. 
judex,  53». 

Instmments,  see  Documents. 

Interests,  see  Welfare. 

Interpolations,  124. 

Interpreter  in  court,  143 

Interrogatories,  see  Questions. 

Ireland.  38*. 

Irish  Eccl.  Record,  5. 

Irregularity,  canonical,  194. 

Jewish  witness,  104:  subtleties, 
86. 

Joinder,  132'. 

Judex,  meaning.  176';  J.  inha- 
bit is,  suspect  us.  49".  132'.  181  ; 
J.  a  quo,  ad  quern,  175':  J.  in- 
structor, 53°;  J.  relator,  235"  f. 

Judge,  qualities  and  duties  48 
ff.;  recusation,  132  ff.;  J.  sole, 
associate,  51,  54.  134.  172;  J. 
delegate,  30  ff.,  55;  J.  appel- 


late, appellee,  175*:  J.  of  in- 
quiry, 53  ff. 

Judgment,  138  ff.;  interlocutory, 
final,  139.  174  ff.,  179;  requi- 
sites, i39f  ;  copy,  174;  day. 
1 29  f . ;  arrest,  1 90'.  Se£  also 
Nullity;  Sentence. 

Judicature,  eccl.,  28  ff. 

Judices  synodales,  prosy  nod.,  40  f. 

Judiciary,  eccl.,  37  ff. 

Judicium,  79;  in  J.,  79;  J. 
statarium,  more  belli,  89*;  J. 
fignra,  87. 

Juge  d"" instruction,  53";  J.  rap- 
porteur, 55*. 

Juramentuin  decisorium,  sup- 
pletorium,  93 ;  J.  veritatis, 
98,  1 16,  122  ;  secreti,  1 16  f.,  1 53, 
172;  malitiae,  115,  128. 

Jurisdiction.  28  ff.;  ordinary, 
quasi-ordinary,  28  f.;  delegat- 
ed, 30  ff.;  competent,  37  ff  ;  ap- 
pellate, 38  f.;  higherand  lower, 

175- 
Jurisdictional  acts,  32,  87.  145. 
Jury,    eccl.,    51;    grand,    petit. 

147';  charge  to  J.,  170*. 
Jus  domum   revocandi,  45. 
Justitiae  tutela,  64  f.,  68,  72. 

Language  in  court,  143. 

Lapse  of  terms,  130;  of  time, 
138,  167. 

Law,  criminal,  16 ff.;  sources. 
20  ff.;  principles.  5^^  Maxims, 
Rules. 

Laymen  as  court  officers.  49.  52', 
56;  lay-advocate,  74  f.;  1.  prose- 
cutor, 65*;  laics  7'j.  clerics,  104. 

Leading  questions,  97,  118. 

Legitimatio  processus,  73.  1 20. 

Letters  paten*,  see  Commission  : 
L.  rogatory,  1 14 :  L.  dimis.sory. 
reverential,  refutatory,  183*; 
anonvmous,  71  ;  L.  registered, 
see  Nfail. 

Limitation,  see  Lapse. 

Litigation,  civil,  80'. 

Litis  contestatio,  31". 

Liturgy,  rubrics,  25. 

Local  competency,  43  ff. 


264 


Index. 


Locus  sacer,  139,  143. 
L'Ordinario,  89",  115,  129,  141', 
171  ff.,  174';  text,  198  ff. 

Mail.  62,  no,  I37^  151,  155". 
Malitia,  115. 

Mandate,  see  Commission;  Writ. 
Maxims  (axioms,  principles)  of 

law,  21,  38^  49,  64,  71,  81,  93  f., 

106,  116',  166,  194. 
Maynooth,  Synod,  39°. 
Messenger,  61  f.,  no,  137',  151, 

Metropolitans,  39 ;  appeal  from 
M.,  39*  "  ;  Metrofiolzttcwn,  39'. 

Minors  as  judges,  48  ;  witnesses, 
104. 

Minutes  {Mmutae),  see  Record. 

Motiitio  trina,  I45^  155. 

Monitor  mm,  144. 

Mutilation,  18',  104. 

Names  of  witnesses,  119,  121, 
148. 

Negotium  unum,  31*. 

Nolle  prosequi,  190'. 

"Not  guilty,"  loi. 

Notary,  57  ;  n.  pubJic,  58". 

Notes,  bishop's  private,  1 50. 

Notice,  judicial,  95. 

Notice  (notification)  of  term, 
130;  sentence,  I38^  174,  184; 
appeal,  182. 

Noting,  the,  61.  96. 

Notoriety,  )  27,  81,  89',  95,  loi. 

Not  or  turn,  \      1 5  5^  1 58, 1 67.  1 79'. 

Nullity  (null  and  void)  of  pro- 
cess, 49,  71,  89,  98,  105,  121, 
138,  141,  173,  187,  189*;  plea 
of  n.,  50,  175,  177,  181.  188  ff. 

Oath,   see  Juramentum.     O.  of 

office,  50,  55.  62,  75. 
Occult  crime,  100,  f  58  fi. 
Official,  the  diocesan,  27,  36,  38, 

50,  68. 
Officiality  36',  63^ 
Officium,  41^. 
Opening  of  case,  95  ;  of  appellate 

proceeding,  184°  f. 
Opinion,  108;  expert,  121. 


Oral,  see  Parol. 

Ordeal,  19. 

Order  of  proceedmgs,  81,  148'; 
of  examination,  97,  n7  ;  of 
presumptions,  126  f.;  of  pleas, 
132. 

Orders,  holy  (prohibition,  sus- 
pension), 157  ff. 

Ordinary,  see  Bishop. 

Organization  of  court,  48  ff. 

Originals  of  documents,  57,  172, 
175,  184,  185s  236^  239. 

Pallotini,  Thesaurus,  ^X-Cit"^. 

Papal  delegates,  31,  41,  134. 

Pardon,  I90^  192. 

Parent  and  child,  n3. 

Parish  records,  143,  147.  See 
also  Benefices. 

Parol  pleading,  n5,  141  f.,  171'; 
evidence,  124. 

Parties  in  trial,  62,  83. 

Patriarchs,  29. 

Patronus,  74'. 

Paupers,  103. 

Pedelli,  62. 

Pension,  195'. 

Peremptory,  j^"^  Citation;  Terms. 

Pericttlum  in  mora,  148,  164°. 

Perjury.  109. 

Personal  delegation,  31° ;  com- 
petency, 37. 

Personate,   [      , 

Personatus,  \  ^    ' 

Personnel  of  the  court,  48  ff. 

Petition,  see  Recourse. 

Place  of  delict,  46 ;  of  examina- 
tion, n3.  168;  of  trial,  143. 

Plaintiff.  70  ff.,  83  f. 

Pleading,  final,  n5,  129,  142, 
172  ff.     See  also  Parol. 

Pleas,  130  ff.  ;  kinds,  130  f.  ; 
sham  P.,  131, 134;  time,  order, 
form,  132.;  P.  to  the  juris- 
diction, 49,  130,  132';  to  the 
judge,  132',  181  ;  to  the  exam- 
ination, testimony,  proceed- 
ing, execution,  131  ff.  ;  to  the 
sentence,  177;  P.  in  avoidance, 
of  justification,  in  excuse,  169. 

Pope,  the,  his  jurisdiction,  28 ; 


Index. 


265 


in  first  instance,  37 ;  appeal. 
51'.  33'  38;  abolition,  192  f.  ; 
pardon,  192'  f. 

Posit  tones  et  articuli,  1 29'. 

Postttlando,  de,  74'. 

Practice,  canon,  crim.,  144. 

Praeceptum,  61,  81,  144,  152'; 
de  non  freguentando,  153.  See 
also  Injunctions. 

Praesentatum,  61,  67. 

Praesumpt tones,    \  93.  96, 125  ff .; 

Presumptions,       \  rules,  126. 

Praeventio  {praevemre),4jS*,  153. 

Prejudice,  28,  139,  187. 

Preliminary,  previous,  see  In- 
quest. 

Principles  of  legality  and  expe- 
diency, 64.  See  also  Maxims ; 
Rules. 

Printed  defence,  142. 

Prtvatio  beneficii,  194. 

Privileged  causes,  94 ;  commu- 
nications, 113;  persons,  104, 
113  ;  places,  143. 

Privilegium  fori,  20",  180. 

Probabilism,  108'. 

Probatio  plena,  semiplena,  70, 91 ; 
artificialis,  inartif.,  92 ;  Pp. 
luce  clariores,  93  f. ;  P.  nega- 
tiva  coarctata,  131,  See  also 
Proof. 

Probatory  term,  129. 

Procedure,    )  j  j-     •  1 

Proceeding,  [^'^'"^•^"^^•^^'P^-' 
its  end,  object,  15,  82,  140, 
187  ;  history  and  sources,  20 
ff.  ;  mode  and  rules,  16,  23, 
141  ff.,  192  {see  also  Rules) ; 
forms  and  parts,  78  ff. ;  judi- 
cial, extrajud.,  27.  53",  75  ff., 
147;  civil,  criminal,  21,  89,99, 
102,  106 ;  accusatory,  inquisi- 
tory,  21,  27,  53,  63  f.,  52  ff., 
85;  denunciatory,  83;  ordina- 
ry, plenary,  summary,  26,  86 
ff. ;  informative.  53".  119;  of- 
fensive, defensive,  67,  120, 
127,  168;  final,  172  ff.  ;  appel- 
late, 182  ff. ;  rash.  147,  167, 
197;  essential  elements,  20; 
formalities,  25,  87  ff.  ;  in  writ 


ing,  141  ;  secret,  142 ;  place, 
time,  language,  143.  See  also 
Arrest;  Stay. 

Prochs-verbal,  119,  171. 

Processus  instruct io,  53  ;  legit i- 
matio,  73  ;  puhlicatio,  1 19, 

Procrastinatio  tnalitiosa,  131. 

Proctor,  76  ff. 

Procurator,  fiscal,  62  ff.,  64",  85  ; 
duties,  67  f.,  74 ;  representa- 
tion, ']^  ;  recused,  136';  at  ex- 
aminations, 116,  169;  at  the 
trial,  166  ff.  ;  charge  and  pro- 
secution, 167  ff. ;  ills  conclu- 
sions and  motions,  120,  171  ; 
new  charge,  173. 

Production  of  witness,  114; 
documents,  123. 

Promotor  fiscalis,  63  f.  ;  P.  f. 
generalis.  77,  236'. 

Proof,  judicial,  91  ;  full,  half, 92, 
105,  107  ;  P.  of  commission, 
32 ;  of  qualifications,  50 ;  of 
documents.  124;  of  a  negative, 
95.    See  also  Evidence. 

Prorogation  of  jurisdiction,  47  ; 
of  terms,  128. 

Prosecution,  62  ff. 

Protocollutn,  61. 

Provocatio  ad  causam,  1 76. 

Provost,  41'. 

Publicatio  processus,  \ 

Publication  of  testi  >■  ^Vq  rr'' 
mony.  ) 

Publicity  of  procedure,  142  f. ; 
of  crime,  158  ff. 

Punishment,  its  end,  17, 65  f..  71, 
82,  138,  140,  149,  154:  cor- 
rective, vindictive,  16,  78.  149, 
180;  extrajud.,  18,  80;  spirit- 
ual, temporal,  18;  corpr^ral, 
capital,  I8^  78  {see  a/r<7  Capi- 
tal) :  in  subsidium,  1 54  ;  pecu- 
niary, 154,  165.  194';  commu- 
tation, 192.  See  also  Correc- 
tion ;  Execution  ;  Sentence  ; 
Pardon. 

Qualifications  of  jnd^,  48: 
auditor,  53.  55';  plaintiff,  70; 
witnesses,  102.  121. 


266 


Index. 


Qualified  persons,  62,  no,  121'; 

witnesses,  121. 
Quash  proceedings,  190",  192. 
Querela  nullitatis,  1 88.     See  also 

Nullify. 
Questions   in    examination,  97, 

117;    schedule,    117;    sugges- 

tivae^  1 19'. 

Real  competency,  37  ff. 
Receipt,  see  Return. 
Recognition,  judicial,  95. 
Record  (minutes),  55,  57,  58^,61, 

96,  III  f.,  130,  139,  141,   150  f., 

154,  164,  169,  174. 
Recourse,)   .gj  f.,  ,75,  ;s7  ff. 
Recur sus,  \  <    /  :>< 

Recovery  of  costs,  195. 
Recusation,    32,    132   ff.,    181  ; 

form,    time,    133;    frivolous, 

134'- 

Redactor  actorum,  55'. 

Redress,  extraord.  means,  187  ff. 

Referee,  \         ^gg^  ^..n 

Refer endarius,  j  ^^  '         >    Jj 

References,  4,  10  f. 

Registered  letter,  see  Mail. 

Registrar,  58". 

Regulars,  29 ;  as  witnesses, 
104. 

Rehearing,  see  Retrial. 

Reincidentia,  161,  186. 

Reinstatement,  see  Restttuito. 

Rejoinder,  132'. 

Relations  by  blood  or  marriage, 
49,  70.  104. 

Relevancy  of  testimony,  94  ff. 

Remission,  see  Pardoti. 

Removal,  138,  194,  195. 

Replicatio,  132'. 

Report,  expert,  122. 

Representation  in  court,  76,  120. 

Reputation,  72,  103,  154.  162, 
166,  191  ff. 

Requisitoria  fiscalts,  171. 

Res  judicata  (conclusive  judg- 
ment, force  of  law,  adjudged 
matter,  definitely  settled), 
140^  179,  185,   187,  189',  190", 

193  ff- 
Restitutio  in  integrum,  189. 


^'^J^-^'  \  see  Abstract, 


Rest  rictus, 
Resumd, 
Retractatio,  i< 
Retreat,  spiritual,  81. 
Retrial,  139,  177,  185,  189. 
Return  of  writ,  I5o^  155, 
Reverential  letters,  i84\ 
Reversal,  145,  177,  183  ff. 

^,^^i^^  \  185. 188. 

Revisto,  )      •' 

Ricci's      Collectio       decretorum, 

43'. 

Roman  law,  20,  26,  45^*,  89,  132, 
137,  188  ff. 

Rome,  26,45,  77 <  9^<  188'. 

Rubrics,  25. 

Rules  of  criminal  procedure,  16, 
23,  66,  71,  82,  128,  165;  of 
justice,  6,  25,  54,  56,  88,  114, 
1 28 ;  on  evidence,  92°,  84  f., 
102. 

Rumor,  63,  69,  93.  109,  166. 

Sacristan  of  cathedral,  41'. 

Salary  of  substitute,  161. 

Sanguinis  causa,  104. 

Schedule  of  questions,  117. 

Seal,  official,  123,  184'. 

Secrecy,  115,  142  f.,  150,  154; 
oath,  116,  152,  172. 

Secretary,  57  ff.,  65,  136;  bish- 
op's private  S.,  59',  151. 

Security,  197. 

Semi-proof,  92.  99. 

Sentence,  50  ff.,  61.  127,  138  fi., 
173  ff.;  requisites,  139  f.;  de- 
claratory, condemnatory,  140; 
in  contumacy,  138, 

Sententia  lata,ferenda,  152,  181 ; 
ex  inf.  consc,  1 56  ff. 

Sham    jileas,    88 ;     S.    appeals, 

179'- 

Signature  to  documents,  no, 
123.  152,  154,  165;  to  deposi- 
tions, n8,  122,  170;  notary's, 
58^ 

Simony,  100'. 

S^nguiaritas)^  witnesses,io6  ff. 

Smgulanty    S 

Sittings,  judicial,  142  f. 

Slaves,  103. 


Index. 


267 


Solemnitas  instrumentorutn,   61; 

jtfdictt,  27,  86. 
Solicitation,  42,  105. 
Solicitor-general,  64'. 
Sources   of  canon,     procedure, 

20  ff. 
Specifications  in  summons.  72  f.; 

in  cluirge,  72  f.,96,  168. 
Stale  interference,  19,  193. 
Stay  of  proceeding,  181,  191  ff., 

of  execution,  192  f. 
Strcpitus  judicii,  27,  86  f. 
Subdelegatc,  32,  34,  36. 
Subordination  of  judge,  133. 
Subornation,  109,  1 1 5. 
Subscription,  see  Signature. 
Subsidium,  in,  154. 
Subtraction  of  witness,  114. 
Suffragan,  senior,  39'. 
Suvimaria  facti  cognitio,  53",  69, 

146. 
Summary,  j^*^  Abstract. 
Summary   information,  see  In- 
quest; Proceeding. 
Summing  up,  i68,  170*. 
Summons,  see  Citation. 
Sundaj's,  143. 
SuppUcatio,  177',  188. 
Surrejoinder,  132'. 
Suspension,  49,  112,  180  f.,  194. 

5<va/j<?Tridentine,  extrajud. 
Suspensive  effect  in  appeal,  130, 

177,   180    ff.;  plea  of  nullity, 

i89\ 
Suspicion,  99,  134,  137,  149,  160, 

166,  191,  198. 
Synod,  diocesan,  197. 

Tariff  of  court  fees,  taxes,  196. 

Technical  law  terms.  4,  16',  37', 
41',  46',  47',  52',  55',  58'.  61, 
63'.  92'.  100'.  loi,  104,  118,  119', 
125',  I29^  132'.  135',  175',  177*, 
179'.  i8i«,  i82». »,  I84^  188  f., 
190*. 

Terms  (fixed  time),  127  flf.; 
kinds,  128  f.,  130.  170:  per- 
emptory, 96.  128,  130;  effect, 
lapse,  130;  t.  to  introduce 
witness,  115;  in  injunction, 
155;  in  appeal,  182  f.,  236'. 


Testes  singular es,  etc.,  106 ;  de 
scientia,  107 ;  de  credulitate, 
audita,  108  f.;  de  fatna,  109; 
T.  instrument arii,  123;  omni 
except ione  via j ores,  105  f. 

Testificata,  115'. 

Testimony,  kinds,  106. 

Torture,  19. 

"Transaction,"  190'. 

Transcript,  see  Copy. 

Travelling  expenses,  195*. 

Trent,  Council,  21,  38,  39",  40. 
112,  137,  157  ff.,  179. 

Trial,  judicial,  165  ff.;  auditor's 
inquest.  165  ff.;  final  pleading, 
sentence,  170  ff. 

Tridentine  suspension,  21,  80, 
156  ff. ;  conditions,  157  ff.; 
occult  crime.  158  f.;  trial  im- 
possible, 159;  effect,  160;  du- 
ration, 161  ;  mode,  162  f.;  sen- 
tence, 164.    Instr.  S.  C,  231  ff. 

Triors,  134,  135'. 

Triplicatio,  132'. 

Tutela  leg  is  et  justitiae,  64,  72. 

Typewriter,  142*. 

United  States,  39*,  51'.  52', 
58'.  62,  63',  64'.  69,  76.  89',  172', 
195',  196,  199,  209,  226. 

UniTersitas  causarum,  31'  f. 

Untersucliungsrichter,  53". 

Vatican  Council,  39». 

Venue,  change  of,  47'. 

Verses  by  the  Gloss  on  tlie 
judge,  49' ;  confession,  99 ; 
recusation,  134'°;  contumacy, 
137*;  appeal,  178'. 

Vicars,  substilute.s,  186  f. 

Vicar-ap>ostolic.  29.  V.  capitu- 
lar, 29,  31,  38.  135. 

Vicar-general,  29,  31,  34,  38,  41*, 
50,  53  f..  147,  154;  his  juris- 
diction, 34  ff.;  delegation. 
35  f.;  commission,  35.  68;  re- 
cused. 135;  in  canon,  admoni- 
tions. 150;  injunctions,  154: 
Trid.  susf>ension,  157*. 

Vicarious  jurisdiction,  29. 

Void,  see  Nullity. 


268 


Index. 


Vote,  decisive,  consultative,  51. 

Wager  of  battle,  19. 

Warning,  see  Admonitions. 

Weight  of  evidence,  105  ff. 

Welfare  (interests),  public,  i^S 
64,  66,  73, 100',  128.  159.  191  ff. 

Weslminsier,  39',  58*. 

Withdrawal,  see  Abolition. 

Witnesses,  101  ff.;  competency, 
absolute,  relative,  102  ff.;  by 
natural  or  positive  law,  103  f. ; 
observation.  104  f.;  classical 
W.,  105;  credibility,  105  f., 
number,  106;  quality  of  depo- 
sitions. 107  ft.;  attendance, 
no;  compulsion,  in;  duties, 
112;  privileged  W.,  n3;  pro- 
duction, 114  ff.;  subtraction, 
114;  foreign,  distant  W.,  114; 
cross-examination,  115;  ex- 
amination, 116  ff.,  120;  publi- 


cation of  testimony,  n9  ff., 
confrontation,  73,  19  ;  subor- 
nation, 109,  115;  unnecessary 
W.,  88,  114  ;  W.  at  formal  ad- 
monitions, 151  ;  at  injunc- 
tions, 154;  Trid.  suspension, 
163  ff.;  costs,  195  ff.  See  also 
Evidence. 

Women,  104,  114. 

Writ  of  error,  50,  185  ;  manda- 
tory, 144.     See  also  Return, 

Writings,  comparison,  123;  proof, 
124.     See  also  Documents. 

Written  commission,  32,  50,  60, 
151  ;  pleading,  90,  115  ;  170  f.; 
evidence,  122  ff.;  procedure, 
141  ;  legal  admonition,  151  ; 
injunction,  154;  Trid.  suspen- 
sion, 165;  sentence,  139,  174. 

Zamboni,  Collectio  decretorum 
S.  C.  C,  43'- 


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